Topic 5 - Electing the Legislature

Topic 5 - Electing the Legislature

1. Importance of elections

   • Key part of demo gov. & citizenship - concept of 'principle of choice'! - people choose their gov an authorise representatives to act on their behalf.
     • Elected leaders represent the state, or country (executive) & make laws on behalf of citizens (parliament)

2. Representative Government

   • Citizens authorise gov to make decisions on their behalf, as opposed to 'direct' gov (ancient greece). Although voters occasionally have direct say on partic. issues e.g.: Referendum (but parl selects the proposal that goes to referendum)
     • In democracy political power resides in people as a whole (not the gov). 'Popular sovereignty' concept
       • Authority to govern comes from the people - not 'divine right', property or status!
         • All gov and systems of gov a artificial creation - created to serve particular purposes at particular times. Eg: (US Declaration of Independence: 'Governments are instituted among men - deriving their powers from the consent of the governed.'

3. Electoral Boundaries

   • Representative democracy - the const. requires that members of parl. are 'directly chosen by the people of the comm.' (House of rep. [2.24], Senate [s.7]. High court stated this establishes system of 'rep. gov.' in Aus.
     • HC determined this had important implications for gov & citizens - gives rise to certain implied rights in const. Because are const. rights, they will invalidate inconsistent laws.
       • These decisions commenced in 1992 (Mason HC) - Implied right to freedom of political communication - Based on ss.7 & 24 of Const., & inference that certain degree of free speech was 'inherent' in rep. gov.
         • Decisions were criticized as illegitimate/activist - HC was said to have exceeded it proper role, assumed power to itself, ignored separation of powers.
           • HC responded it was merely drawing implications from the const. These decisions explain the later HC Decisions regarding voting rights and electoral boundaries.
             • Principle of equality of voting power - 'one vote, one value' but what if some electorates have more votes than others? voters in more populous electorates have less voting power. is this prohibited by the const? Often this is unintentional, e.g.: resulting from population growth & movement e.g. urbanisation, or sometimes intentional - gov will rig electorates to stay in power.
               • Electoral boundaries are frequently moved, Electoral Act refers to a range of relevant factors: communities of interest, means of travel & communication, etc.)
               • Does the Const. Require roughly equal sized electorates? US Const. requires 'one vote one value' - the aust. const requires that Senators and members of House of rep. are 'directly chosen by the people' (ss.7 & 24). Case: McGinty v Western Aus (1996)
                 • Remember senate electorates based on state borders. Each state has same number of senators regardless of population. Principle of 'equal representation' - no State more powerful than any other. Based on Senate being the 'States' House' (representing the interests of the states, the individuals.)
                   • Principle of 'one vote one value' only applies to representation in the Lower House. Based on representation of individuals - does not apply to upper house representation - which is based on representation of interests eg. states
                     • Influence of political parties in elections is huge - parties decide who will stand for election, many people vote for a party rather than a particular candidate, dominance of the two major parties at state & federal level, recent emergence of independent members & 'special interest' parties.
                       • Political parties also determine voting in parliament - for example majority of australians seem to support same sex marriage. but government refuses to allow a 'conscience vote'. is government an obstruction to democracy?

4. Key features of elections

   • Several principles have emerged regarding elections over time: Universal Adult Suffrage (everyone entitled to vote), regular elections, secret ballot & payment of members of parl.
     • UAS- no small thing! historically, right to vote was restricted to those owning property, men & those of certain status eg. Race exclusions, economic class, education, etc. UAS existed in aus in 1904, not till 1928 in UK. S.41 of Const. provides any person entitled to vote in each colony at fed. is also entitled to vote in fed. elections. Indig. not allowed to vote in fed elections till 1967, only in certain states.
       • Regular elections ensure accountability & choice - need to be regular, not one-off. Fixed-term elections are used (fixed-terms periods of parl. used in victoria- 4 years) not used a federal level - (gov determines timing of election)
         • Secret ballot & non-interference - seeks to reduce influence of others on voting choice. (so is free/independent choice). Crim offence to interfere with or obstruct person from casting a vote. Voters cannot be threatened or offered inducements to vote in a particular way. electoral promises (eg. build new school) not constitute improper inducements. Sometimes this is a fine line - distinction between personal/direct inducement & indirect benefits.
           • Payment of MP's allows all people to stand for parl (regardless of financial means, property, etc.) criticisms of MP's salary & entitlements - are MP's paid too much?

5. What is parliament? What does it do?

   • Consists of two houses of parliament, & queen (or queen's rep). [See s.1 of Const.]
     • To become law, a bill must be passed by both houses and recieve royal assent.
       • Both houses of parl. have different purposes: lower house - house of government, upper house - house of review (& senate also the 'states' house). & different terms: Senators have 6 year terms, members of House of Rep. have 3 year terms.
         • Different electoral systems: one 'winner' per electorate using preferential voting system
           • Senate: multiple 'winners' per electorate (state): proportional voting system - favours independent parties, proportion of votes obtained corresponds to proportion of seats won
             • put simply - parliament makes laws, regulates society by making legislation. but parliament does not only make laws, has other important functions. and not only parliament makes laws, many persons and bodies make delegated legislation, e.g. courts.

6. Who can stand for parliament?

   • comes down to 2 questions: is person eligible to stand for election? is the person disqualified?
     • Different requirements in each state & territory - to be eligible person must be qualified to vote (be 18 y.o, may have to live within jurisdiction for a certain time, however this not generally required).
       • s.44 of Const. sets out disqualification factors [also see Sue v Hill (1999)

7. Who can vote?

   • Voting - aspect of citizenship. The const. does not refer to citizenship AT ALL - just refers to 'subject[s] of the queen'. This was a deliberate choice - at time of federation each colonies had different rules regarding who could vote and colonies did not want com. laws to change this.
     • Broadly speaking - regarding absence of 'citizenship' in const. - Const. was not intended to confer rights on people, certain groups were not intended to have equal rights (e.g.: indig. people, migrant workers). - Left parl. to determine who has rights.
       • Eligibility - in vic person generally must be 18 y.o, Australian citizen, resident in electorate for a certain period prior to registration. Disqualifications include persons of unsound mind, those convicted of certain offences. Case: Roach v Electoral Commissioner (2007)
         • Right to vote is important political right - aspect of citizenship. Parl. could not remove right to vote except for valid reason and only proportionately. Blanket ban on all prisoners voting was not proportionate (Blanket ban has disproportionate impact on certain groups e.g. indig. people. [higher incarceration rates] incarc. was often relatively minor infringements e.g. failure to pay fines. Parl was essential punishing people for being poor.
           • Prev. discqual. (3 years) was valid and proportionate - related to seriousness of offence, temporary disq. from participating in electoral process. Very important decision regarding rights of citizens - parl cannot arbitrarily deprive person of right to vote.
             • Australia very unique in enforcing compulsory voting - forces people to be politically involved citizens. Similar to performing jury duty, seems to go against principle of free choice. in many countries very small number of people enrol to vote. Some say this promotes extremism - Eg: right-wing & nationalist parties. Increasing number of 'informal votes' in Aus elections...

8. Court of Disputed Returns

   • Election results can be challenged in courts of disputed returns - state supreme court or high court. Legislation sets grounds for challenging an election result, usually quite limited - bribery, corruption, unlawful action. Power to declare election void, order another vote to take place. Case: West Australia 2013
     • Electoral Commission: Independent statutory bodies responsible for conducting elections. Important that Commission is independent - & is seen to be independent - of government. In many countries, elections are rigged, voters threatened, opposition members and leaders determine the outcome. Claim the legitimacy of being 'elected' without he election being free/fair.

9. Democratic & non-demo systems

   • Contrast rep. gov to other systems of gov - Eg: where members of gov and political leaders are appointed by the ruling party (not citizens). There are no elections of members of gov, or political leaders.
     • Although, in Aus not all members of 'gov' are elected - Queen (head of state) born into role, and G.G is appointed.
       • Prime minister/premier also chosen by his/her party, not directly by people. Ministers are chosen by Pm/Premier & Candidates are chosen by party.
         • Parl. one of most powerful branches of government - power to make laws applying to everyone. Fair that those bound by law (citizens/people) entitled to choose own law-makers and leaders, and also dismiss them in reg. elections.