Bryan Mercurio; George Williams --- "Australian Electoral Law: 'Free and Fair'?" [2004] FedLawRw 18; (2004) 32 Federal Law Review 365
[*] Director, Electoral Law Project, Gilbert + Tobin Centre of Public Law and Lecturer, Faculty of Law, University of New South Wales.
[**] Anthony Mason Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales; Barrister, New South Wales Bar. The Electoral Law Project is supported by the Australian Research Council and the Electoral Council of Australia. We thank Ben Golder and Mark Walters for their research assistance.
[1] See, eg, the 58th session of the United Nations Commission on Human Rights, which took place in Geneva in early 2002. At that session, a Peruvian-led initiative co-sponsored by 59 states, building on resolutions of previous years on 'Further Measures to Promote and Consolidate Democracy', was adopted by a vote of 41 to zero (with nine abstentions): The Report of the Commission on Human Rights on its Fifty-eighth Session, UN ESCOR, 58th sess, Supp No 3, [393], [404], UN Doc E/CN.4/2002/200 (2002) (the report contains the resolutions and decisions of the Commission, as well as a listing of the participants). The resolution, Further Measures to Protect and Consolidate Democracy, ESC Res 2002/46, UN ESCOR, 58th sess, Supp No 3, [1], UN Doc E/CN.4/2002/200 (2002), declares that the essential elements of democracy include respect for human rights and fundamental freedoms, freedom of association, freedom of expression and opinion, access to power and its exercise in accordance with the rule of law, the holding of periodic free and fair elections by universal suffrage and by secret ballot as the expression of the will of the people, a pluralistic system of political parties and organizations, the separation of powers, the independence of the judiciary, transparency and accountability in public administration, and a free, independent and pluralistic media.
See also Article 17 of the Inter-American Democratic Charter, which grants the Secretary General of the Organisation of American States ('OAS') the authority to send preliminary missions to a member state to assess if the country in question has sufficient security and free access to information for an effective electoral-observation mission. Under Article 18, if minimum conditions required for the holding of 'free and fair elections' are not present, the OAS has the authority to send preliminary technical missions to the affected state in order to create or improve conditions for holding free and fair elections, provided that the state consents. See Convocation of the Twenty-Eighth Special Session of the General Assembly, CP Res 793 (1283/01), OAS Doc OEA/Ser.G/CP/RES.793 (1283/01) (2001).
[2] 'Mugabe Poll Challenge in Court', BBC Online, 3 November 2003, <http://news.bbc.co.uk/1/hi/world/africa/3236053.stm> at 3 November 2003.
[3] See, eg, 'US Shares Russia Poll Concerns', BBC Online, 8 December 2003, <http://news.bbc.co.uk/1/hi/world/europe/3300483.stm> at 8 December 2003; Maksim Glikin, 'Going to the Polls Blindfolded', Nezavisimaya Gazeta (Russia), 13 February 2003, <http://www.cdi.org/russia/johnson/7061-18.cfm> at 8 December 2003.
[4] In fact, a Russian election official was quoted as saying that the US should adopt Russian standards and even Zimbabwe, a country repudiated for its dictatorial leader and corrupt elections, offered to send electoral officials to 'help' the US: Brian Whitaker, 'Race for the White House: World View: America Should Copy Us, Says Russian Poll Chief: Many Countries Are Enjoying the US Shambles', The Guardian (London, UK), 11 November 2000, 3. For more on the controversy surrounding the 2000 US Presidential Election, see Daniel Lowenstein, 'Lessons from the Florida Controversy' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 7.
[5] The imposition of the electoral system of a long-standing democracy on an emerging democracy has been questioned. See Michael Maley, 'Australian Electoral Law: Not a Model for Others' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 40.
[6] For a more comprehensive study of Australian democracy, see The Democratic Audit of Australia, conducted by the Political Science Program in the Australian National University's Research School of Social Sciences to assess Australia's strengths and weaknesses as a democratic society. The website for the audit is located at <http://democratic.audit.anu.edu.au> .
[7] See Internet Policy Institute, Report of the National Workshop on Internet Voting: Issues and Research Agenda (2001) 11 <http://www.vote.caltech.edu/Reports/ipi-nsf-report.pdf> at 23 November 2004 ('IPI Report'). See also Bryan Mercurio, 'Overhauling Australian Democracy: The Benefits and Burdens of Internet Voting' [2002] UTasLawRw 7; (2002) 21 University of Tasmania Law Review 23, 26–7.
[8] See Elections Canadam Technology and the Voting Process (1998) 14-15 <http://www.elections.ca/loi/vot/votingprocess_e.pdf> .
[9] Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (1990) Organisation for Security and Co-operation in Europe <http://www.osce.org/docs/english/1990-1999/hd/cope90e.htm> at 23 November 2004 ('Copenhagen Commitments').
[10] Commonwealth Electoral Act 1918 (Cth) s 93.
[11] See Commonwealth Electoral Act 1918 (Cth) pt VII (entitled 'Qualifications and Disqualifications for Enrolment and for Voting').
[12] See Commonwealth Electoral Act 1918 (Cth) pt XI (entitled 'Registration of Political Parties') and Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 209 ALR 582.
[13] While the Commonwealth and each State's deposit vary, the schemes generally operate the same everywhere in Australia. The candidate pays a deposit which is refundable upon that candidate receiving a certain percentage of the vote. Of course, once the deposit or voting threshold reaches a certain level (say $10 000 or 20 per cent of the vote), the participation principle may be violated. The deposit in the Commonwealth for the House of Representatives is $350, which is returned when a candidate receives at least 4 per cent of the first preference vote. See 'Elections for the House of Representatives' (House of Representatives Infosheet No 8, 2002) 1 <http://www.aph.gov.au/house/ info/infosheets/is08.pdf> at 20 October 2004.
[14] See Commonwealth Electoral Act 1918 (Cth) pt XVI (entitled 'The Polling').
[15] In both countries, fear and intimidation have been frequently used to 'encourage' voters to select a particular candidate. See, eg, Anita Snow, 'Cuban Leaders Watch US Election', Cubanet, 22 August 2000, <http://www.cubanet.org/CNews/y00/ago00/22e7.htm> at 8 December 2003.
[16] See, eg, Commonwealth Electoral Act 1918 (Cth) pt XVIII (entitled 'The Scrutiny').
[17] However, the Australian electoral system does require blind voters, voters with limited arm movements and illiterate voters to disclose their vote to an electoral official in order to cast a ballot. The fact that technology exists that would grant those voters the right to vote in secret could mean that Australia is violating a principle of 'free and fair' elections. See below, Part IV.
[18] See Commonwealth Electoral Act 1918 (Cth) s 96.
[19] Most recently, the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) amended the Commonwealth Electoral Act 1918 (Cth) to prevent prisoners serving a sentence of three years or longer from enrolling to vote (the disqualification had been for sentences of five years or longer).
[20] See Marian Sawer, 'Enrolling the People: Electoral Innovation in the New Australian Commonwealth' in Graeme Orr, Bryan Mercurio and George Williams (eds) Realising Democracy: Electoral Law in Australia (2003) 52.
[21] See ibid 53–6.
[22] For several examples of attempts to improve upon the electoral system in colonial Australia, see Marian Sawer, 'Pacemakers for the World?' in Marian Sawer (ed) Elections: Full, Free & Fair (2001) 1.
[23] For a brief history of reform to the Australian electoral system, see The Parliament of the Commonwealth of Australia, Joint Select Committee on Electoral Reform, First Report, Parl Paper No 227 (1983) ch 1.
[24] Robert A Dahl, On Democracy (1998) 96.
[25] Although sometimes still called 'the Australian ballot' in the US and other parts of the world, the secret ballot was actually the product of an international movement beginning in Britain in the 1930s. See Mark McKenna, 'Building "a Closet of Prayer" in the New World: The Story of the "Australian Ballot"' in Marian Sawer (ed) Elections: Full, Free & Fair (2001) 45, 45–7. Others yet still trace early forms of secret voting to ancient Greece and Roman times. See, eg, Russell G Smith, 'Electronic Voting: Benefits and Risks' (2002) 224 Trends and Issues in Crime and Criminal Justice 1.
[26] The secret ballot was introduced into the Western Australian Legislative Council in 1877 and, with the granting of responsible government, in 1896 in the Western Australian Legislative Assembly. See McKenna, above n 25, 46.
[27] The secret ballot was adopted in the German Empire in 1871, UK in 1872, the Netherlands in 1887, most states of the US beginning in 1888, Austria in 1907 and France in 1913.
[28] See Amy McGrath, The Frauding of Votes? (2nd ed, 2001) 9–26, 113–38. In Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449, 457, Isaacs J, sitting as the Court of Disputed Returns, determined 'whether it is permissible to receive evidence as to the intention of those electors [wrongly denied a vote by official error]'. Isaacs J was willing to accept such evidence, reasoning that to deny the evidence would have defeated the franchise of those wrongly deprived the ballot. Section 365 of the Commonwealth Electoral Act 1918 (Cth) reverses Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449 on that point, but only applies to disputed returns petitions where electors were denied a vote by official error.
[29] The forms of voting ranged from oral voting ('viva voce') in England to signing a public voting list in France and reading and handing in a ballot in front of fellow citizens in Massachusetts. See Hubertus Buchstein, Public Voting in Modern Societies: Arguments for an Alternative in the Nineteenth Century <http://www.jyu.fi/yhtfil/polcont/hbpublic.htm> at 5 December 2003.
[30] Once a proponent of the secret ballot, John Stuart Mill became known as a staunch defender of public voting, arguing social modernisation can only be complete when votes can be cast freely, even in public voting proceedings. See John Stuart Mill, Considerations on Representative Government (1861) 205–16; John Stuart Mill, Autobiography in John M Robson and Jack Stillinger (eds) Collected Works of John Stuart Mill (1981) vol 1, 1.
[31] In his famous work Democracy in America, Alexis de Tocqueville argued that the secret ballot was not needed in modern democracies, as voters in the US and other societies characterised by modernity and social mobility do not have to fear any negative consequences from the publicity of the vote (see, generally, Alexis de Tocqueville, Democracy in America, J P Mayer and Max Lerner (eds) (George Lawrence trans, 1968 ed)). De Tocqueville's assessment of the US enjoyed prominent company. James Mill, a prominent proponent of the secret ballot, explicitly excluded the US from his demand for voting reform in the UK, asserting that the US had fewer social inequalities, higher social and regional mobility, and less 'sinister (aristocratic) interests'. Mill wrote: 'The Americans have little motive for the accurate use of it' and 'this case and ours are in this respect diametrically opposite; they do not depend upon the ballot for independent voting, we cannot possibly obtain it by any other means': James Mill 'On the Ballot', Westminster Review (July 1830) 27.
[32] See Buchstein, above n 29.
[33] Compulsory voting has withstood court challenge. In 1926 in Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380, a member of the Socialist Labour Party appealed to the High Court in regard to the fine levied for not voting in the 1925 federal election. He argued that since all candidates represented capitalism, he could not, in all sincerity, vote for any of them. The majority of the Court rejected this argument and held that the voter could be compelled to choose between the candidates (the case did not mention the idea of casting an informal vote as a protest). In 1996, the High Court in Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 340 revisited the issue and declared that 'compulsory voting in federal elections is within the power of Parliament.' Similar reasoning was applied by the High Court later in the same year in Muldowney v South Australia (1996) 186 CLR 352.
[34] Belgium introduced compulsory voting first in 1893. Other nations which have compulsory voting for the entire voting population are Argentina, Bolivia, Brazil, Chile, Costa Rica, Cyprus, Dominican Republic, Ecuador, Egypt, Fiji, Greece, Liechtenstein, Luxembourg, Nauru, Panama, Peru, Singapore, Thailand and Uruguay: see Lisa Hill, '"A Great Leveller": Compulsory Voting' in Marian Sawer (ed) Elections: Full, Free & Fair (2001) 129.
[35] The Commonwealth introduced compulsory enrolment in 1911. A Conservative government introduced the measure (which the House debated for 15 minutes), but it was not seen as being for political advantage, as both parties were interested in increasing voter participation. See Marian Sawer, 'Inventing the Nation Through the Ballot Box' in Department of the Senate, Papers on Parliament No 37, For Peace Order, and Good Government: The Centenary of the Parliament of the Commonwealth of Australia (2001) 69. Evidence from the 1980s suggests that the Labor Party has overall benefited the most from compulsory voting. See Murray Goot, Thwarted or Facilitated? Pauline Hanson's One Nation and the Party Cartelisation Thesis (Unpublished paper, 2003) 7 (on file with authors).
[36] Victoria, New South Wales and Tasmania (1928), Western Australia (1936) and South Australia (1942).
[37] See Commonwealth Electoral Act 1918 (Cth) ss 101, 245.
[38] Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302; Muldowney v South Australia [1993] HCA 34; (1996) 178 CLR 352. See also Anne Twomey, 'Free to Choose or Compelled to Lie? — The Rights of Voters after Langer v The Commonwealth' [1996] FedLawRw 7; (1996) 24 Federal Law Review 201, 208–12.
[39] Martin Painter, 'Elections' in Rodney Smith (ed), Politics in Australia (2nd ed, 1993) 148, 150. Compulsory voting increased the Senate participation rate from 57 per cent in 1922 to 91.3 per cent in the 1925 election (the first election under compulsory voting). See Brian Costar, 'Electoral Systems' in Andrew Parkin, John Summers and Dennis Woodward (eds), Government, Politics, Power and Policy in Australia (5th ed, 1994) 184.
[40] Australian National Audit Office, Integrity of the Electoral Roll, Audit Report No 42 (2002). While it would be literally impossible to ensure that 100 per cent of eligible voters are registered, the attempt is made to register as many people as possible. Examples of encouraging the vote include reminding 17 year olds to enrol as well as providing in legislation for itinerant enrolment (for homeless people, or people who travel constantly and have no permanent fixed address).
[41] For a comparison with other nations, see International Institute for Democracy and Electoral Assistance, Voter Turnout: A Global Survey <http://www.idea.int/voter_turnout/voter_turnout.html> at 18 October 2004.
[42] Polls often show support for compulsory voting at between 66–75 per cent. Hill, above n 34, 130 n 6. For a detailed analysis of compulsory voting, see Lindsay Smith, Compulsory Voting: A Comparative Approach (1980); Colin A Hughes, 'Compulsory Voting' in Colin A Hughes (ed), Readings in Australian Government (1968) 225–39.
[43] Without compulsory voting, politicians and political parties would, no doubt, spend considerable resources ensuring their supporters travelled to the polling station and voted. Of course, there are some politicians who have spoken out against compulsory voting, including Prime Minister John Howard and former Australian Democrats leader Janine Haines. See Scott Bennett, Winning and Losing: Australian National Elections (1996) 77.
[44] The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, Report of the Inquiry into All Aspects of the Conduct of the 1996 Federal Election and All Matters Related Thereto, Parl Paper No 93 (1997) 26.
[45] Ibid.
[46] Civics Expert Group, Whereas the People: Civics and Citizenship Education — Report of the Civics Expert Group (1994).
[47] Plural voting was abolished elsewhere in Australia near the turn of the century, though it survived in some respects in some local government regimes. In contrast, Britain did not achieve adult male suffrage until 1918, full voting rights for women until 1928 and retained forms of plural voting until 1948.
[48] For instance, the first elections for the New South Wales Legislative Council were conducted in 1978. For much of its existence, Legislative Council members were appointed by the Governor (on the advice of the Premier) for life and there was no upper limit on the number of members. See generally, Ian McAllister, Malcolm Mackerras and Carolyn Brown Boldiston, Australian Political Facts (2nd ed, 1997). For comparison with other States, see Joan Rydon, 'Upper Houses — The Australian Experience' in GS Reid (ed), The Role of Upper Houses Today: Proceedings of the Fourth Annual Workshop of the Australasian Study of Parliament Group, 1983, 22–42.
[49] On the 1902 uniform franchise and its implementation, see Sawer, above n 20, 52–65.
[50] On the evolution of the franchise and parliamentary history since federation, see Jennifer Norberry, 'The Evolution of the Commonwealth Franchise — Tales of Inclusion and Exclusion' in Graeme Orr, Bryan Mercurio and George Williams (eds) Realising Democracy: Electoral Law in Australia (2003) 80. Even today, enrolment rates for Aboriginal Australians are consistently lower than for non-indigenous Australians.
[51] Commonwealth, Parliamentary Debates, House of Representatives, 24 April 1902, 11979 (Isaac Isaacs).
[52] Ibid 11977.
[53] Commonwealth Electoral Act 1962 (Cth).
[54] Pat Stretton and Christine Finnimore, 'Black Fellow Citizens: Aborigines and the Commonwealth Franchise' (1993) 25 Australian Historical Studies 521.
[55] Commonwealth Electoral Act 1962 (Cth).
[56] For more on Indigenous voting, see Stretton and Finnimore, above n 54.
[57] Commonwealth Electoral Act 1918 (Cth) s 93(8). Until 1983, all persons convicted of an offence punishable by imprisonment of one year or longer were disenfranchised: see Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s 23, amending Commonwealth Electoral Act 1918 (Cth) s 39(4). Until August 2004, all persons convicted of an offence punishable by imprisonment of five years or longer were disenfranchised.
[58] See Jerome Davidson, 'Inside Outcasts: Prisoners and the Right to Vote in Australia' (Current Issues Brief No 12 2003–04, Australian Parliamentary Library, 2004) 2 <http://www.aph.gov.au/library/pubs/CIB/2003-04/04cib12.pdf> at 20 October 2004. See also Graeme Orr, 'Ballotless and Behind Bars: The Denial of the Franchise to Prisoners' [1998] FedLawRw 3; (1998) 26 Federal Law Review 55. Prior to 1995, persons convicted of a crime and serving a sentence where the potential sentence (as opposed to the actual sentence received) was five years or more were disenfranchised. However, this proved difficult to administer as prison authorities generally only receive information in regard to the actual sentence imposed, not the maximum possible sentence each prisoner might have received. See the evidence of AEC in The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, The 1993 Federal Election: Report of the Inquiry into the Conduct of the 1993 Federal Election and Matters Related Thereto, Parl Paper No 416 (1994) 142; Jennifer Fitzgerald and George Zdenkowski, 'Voting Rights of Convicted Persons' (1987) 11 Criminal Law Journal 11, 15.
[59] In the US, the practice of denying convicted persons the right to vote has been upheld in numerous cases. See, eg, Otsuka v Hite, 64 Cal 2d 596 (1966); State ex rel Barrett v Sartorious, 351 Mo 1237 (1943); Green v Board of Elections of the City of New York, 389 US 1048 (1968). Cf Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519, in which the Supreme Court of Canada stuck down s 51(e) of the Canada Elections Act, RSC 1985, c E-2, that denied the right to vote to '[e]very person who is imprisoned in a correctional institution serving a sentence of two years or more.'
[60] See generally Orr, 'Ballotless and Behind Bars', above n 58.
[61] See Sawer, above n 35, 78.
[62] Unlike first-past-the-post voting, preferential voting does not intentionally exclude minor parties, but in a system with two entrenched political parties, it does tend to ensure, nation-wide, that minor parties are virtually unrepresented in the lower house of government.
[63] See David Solomon, Australia's Government and Parliament (4th ed, 1978) 84–6. Interestingly, feeling they would win more divisions without preference distributions, the Labor Party at one time sought to reintroduce first-past-the-post voting. See Bennett, above n 43, 78.
[64] Optional preferential voting was introduced in New South Wales in 1981 by the Labor government, which sought to reduce the level of informal vote occasioned by exhaustive preferential voting and correspondingly also wanted to disrupt the exchange of preferences between the Liberal and National Party. While the rate of informal vote did not drop, the campaign to reduce the power of the Liberal-National coalition appeared to have been effective. See Goot, above n 35, 9.
[65] For a good historical record of the reasons behind Australia's shift to proportional representation, see John Uhr, 'Why We Chose Proportional Representation', in Department of the Senate, Papers on Parliament No 37, Representation and Institutional Change (1999) 13.
[66] See, eg, Painter, above n 39, 151–7; see also the Proportional Representation Society of Australia <http://www.cs.mu.oz.au/~lee/prsa/> . Cf the New Zealand method of elected parliamentarians, which uses a hybrid plurality and proportional system originally developed by the Germans whereby each elector has two votes, one for their preferred candidate and another for their preferred party. This system has been called 'the model all democracies should follow', Austin Ranney, Governing: An Introduction to Political Science (6th ed, 1993) 183.
[67] Painter, above n 39, 155–63.
[68] The ACT and Tasmania do not use this system of voting.
[69] This practice has been unsuccessfully challenged in the High Court on at least three occasions: McClure v Australian Electoral Commission [1999] HCA 31; (1999) 163 ALR 734; Abbotto v Australian Electoral Commission (1997) 144 ALR 352; McKenzie v Commonwealth [1984] HCA 75; (1984) 57 ALR 747. For discussion, see Graeme Orr, 'Of Electoral Jurisdiction, Senate Ballot Papers and Fraudulent Party Registrations: New Developments in Electoral Case Law' (1999) 2 Constitutional Law and Policy Review 32, 34–5.
[70] See Commonwealth Electoral Act 1918 (Cth) s 211A (inserted in 1987 as part of the Commonwealth Electoral Amendment Act 1987 (Cth)).
[71] Note that, by convention, such advertisements stop in the caretaker period once an election is called. Also see New South Wales, Independent Commission Against Corruption, Report on an Investigation into the Conduct of the Hon Malcolm Jones MLC (2003) <http://www.icac.nsw.gov.au/files/pdf/pub2_83i2.pdf> , condemning Malcolm Jones MLC (Outdoor Recreation Party NSW) for misusing parliamentary resources on party matters. Jones was eventually forced out of Parliament for his activities. See Paola Totaro, 'MP Who Picked Public Pocket Faces Expulsion', Sydney Morning Herald, 11 July 2003, <http://www.smh.com.au/articles/2003/07/10/1057783287533.html> at 11 July 2003; New South Wales, Parliamentary Debates, 3 September 2003, 3003 (Malcolm Jones). Cf Charles Blunt, National Party leader, who infamously in the early 1990s spent $250 000 on postage to his electorate during an election but was not penalised for his activities. He did, however, lose the election. See ABC Online, Electoral Profile for Richmond (1998) <http://abc.ozemail.com.au/electorates/data/profiles/RICH.htm> at 2 February 2004.
[72] However, only two Australian jurisdictions have entrenched one vote, one value in their constitutions: New South Wales and South Australia – see Constitution Act 1902 (NSW) s 28 and Constitution Act 1934 (SA) s 77(1). Two attempts to change the federal Constitution to reflect one vote, one value have failed. The first was by the Whitlam government in 1974 and the second by the Hawke government in 1988.
[73] [1975] HCA 53; (1975) 135 CLR 1.
[74] Ibid 61.
[75] Ibid 36–7.
[76] Ibid 57.
[77] Noted electoral expert Colin Hughes has written that 'the parameters to enrolment numbers required to satisfy the one vote, one value principle will have to be set in the parliamentary sphere rather than the judicial': Colin A Hughes, 'Institutionalising Electoral Integrity' in Marian Sawer (ed), Elections: Full, Free & Fair (2001) 142, 146–7.
[78] [1996] HCA 48; (1996) 186 CLR 140 ('McGinty').
[79] See generally George Williams, Human Rights Under the Australian Constitution (1999) 96–128.
[80] See Susan Downing, 'One Vote One Value — An Implied Right Too Far? The High Court Decision in McGinty & Ors v State of Western Australia (1996)' (Research Note No 38 1995–96, Australian Parliamentary Library, 1996) 1 <http://www.aph.gov.au/library/ pubs/rn/1995-96/96rn38.htm> at 14 January 2002.
[81] For example, it was noted by Gummow J in McGinty at that variations in the number of electors in single-member divisions could be so 'grossly disproportionate as to deny ultimate control by popular election': [1996] HCA 48; (1996) 186 CLR 140, 286.
[82] A-G (WA) v Marquet [2003] HCA 67; (2003) 202 ALR 233. See also the further attempt, by federal private members Bill, to override these boundaries in the State Elections (One Vote, One Value) Bill 2001 (Cth). See also Senate Legal and Constitutional References Committee, State Elections (One Vote, One Value) Bill 2001 [2002] (2004).
[83] For detailed arguments for and against on vote, one value, see Dean Jaensch, Election!: How and Why Australia Votes (1995) ch 4. See also Electoral and Administrative Review Commission, Report on Queensland Legislative Assembly Electoral System, Report No 4, vol 1 (1990), 118–72, 176–90.
[84] See Kirsten Robinson, 'One Vote, One Value: The WA Experience' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 100.
[85] The Commission on Government found that Western Australia is a large State in which there are problems of remoteness as well as communities of interest and minority groups that need to be protected by some latitude in the application of the principle of equal electoral districts: Commission on Government, Report No 1 (1995) 301.
[86] Whether the fact that weighting can be attributed solely to Western Australia's geography, however, is debatable. Electoral reform, particularly in relation to one vote, one value, has been an evolutionary process in Western Australia, typified by negotiation, partisan advantage and compromise along the way. Both Labor and non-Labor governments have endorsed weighting at various times in the past. Even the Labor government's recent inclusion in its legislation of weighting for geographically large electorates, borrowed from Queensland, can be attributable as much to political exigencies as to an attempt to meet geographic difficulties. For a detailed history of electoral reform in Western Australia, see Graham Hawkes, 'A Long Rocky Road Towards Electoral Reform' (Paper presented at the Australasian Study of Parliament Group Ninth Annual Conference, Wellington, August 1987).
[87] As Marian Sawer notes, the 'idea that rural interests had a special claim to representation has declined in legitimacy over time': Marian Sawer, 'Representing Trees, Acres, Voters and Non-voters: Concepts of Parliamentary Representation in Australia' in Marian Sawer and Gianni Zappalà (eds), Speaking for the People: Representation in Australian Politics (2001) 36, 42. One vote, one value is applied to Western Australia at the federal level for the House of Representatives, with the result that the federal seat of Kalgoorlie is 'roughly the same size as France, Germany, Italy and Spain put together': at 42.
[88] See Commonwealth Electoral Act 1918 (Cth) pt II (entitled 'Administration'), div 2 (entitled 'The Australian Electoral Commission'). For more on the AEC, see Bron Stevens, Elections: How? Why? When? (1984) 16–19.
[89] For more on the independence of the AEC, see John Uhr, 'Rules for Representation' in Geoff Lindell and Bob Bennett (eds), Parliament: The Vision in Hindsight (2001) 249–90.
[90] Commonwealth Electoral Act 1918 (Cth) s 6(4).
[91] Commonwealth Electoral Act 1918 (Cth) ss 6, 12.
[92] Commonwealth Electoral Act 1918 (Cth) s 25.
[93] Sawer, above n 35, 75–6. Apparently, it was even difficult to achieve bipartisan support on such mundane matters as the time for closing the polling booths: at 76.
[94] For more on the role of federal Parliament in developing electoral law, see John Uhr, 'Measuring Parliaments against the Spence Standard', in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 66–79.
[95] The Parliament of Australia web site states 'the role of the Joint Standing Committee on Electoral matters is to inquire into and report on such matters relating to electoral laws and practices and their administration as may be referred to it by either House of the Parliament or a Minister. The matters that may be referred by the House include reports by the Commonwealth Auditor-General. The Committee could also inquire into matters raised in annual reports of Commonwealth Government departments and authorities': <http://www.aph.gov.au/house/committee/em/emrole.htm> at 23 January 2004.
[96] 'Decision 2000/America Waits: A "Modern" Democracy that Can't Count Voters; Special Report: What Happened in Florida is the Rule and Not the Exception. A Coast-to-Coast Study by The Times Finds a Shoddy System that Can be Trusted When the Election isn't Close', Los Angeles Times (Los Angeles, USA), 11 December 2000, A1. As each county has to fund the cost of voting equipment, the poorer counties cannot afford $5000 on proper technology: see Paul Schwartz, Voting Technology and Democracy (2002) 77 New York University Law Review 625, 643.
[97] Schwartz, above n 96, 625–6.
[98] To the authors' knowledge, the term 'voting technology divide' first appeared at ibid 625.
[99] Ibid.
[100] John Mintz and Dan Keating, 'A Racial Gap in Voided Votes; Precinct Analysis Finds Stark Inequity in Polling Problems', The Washington Post (Washington DC, USA) 27 December 2000, A.01.
[101] John Mintz and Dan Keating, 'Florida Ballot Spoilage Likelier for Blacks; Voting Machines, Confusion Cited', The Washington Post (Washington DC, USA) 3 December 2000, A.01.
[102] Darrel Rowland, 'Many Votes Uncounted in Ohio's Poor Areas', The Columbus Dispatch (Columbus, USA) 17 December 2000.
[103] United States House of Representatives, Minority Staff Special Investigations Division, Committee on Government Reform, Election Reform in Detroit: new Voting Technology and Increased Voter Education Significantly Reduced Uncounted Ballots (2001).
[104] Ibid 4.
[105] Ibid 1.
[106] Ibid.
[107] See Stephen Ansolabehere and Charles Stewart III, 'Voting Technology and Uncounted Votes in the United States' (2002), Cal Tech-MIT Voting Technology Project, Cal Tech MIT, http://www.vote.caltech.edu/Reports/residual_vote.pdf> at 27 November 2003. Voting technologies have only seriously been studied in the 1950s and 1960s, when lever-arch machines became popular, and again in the 1980s, when punch cards and optical scan machines became operational: at 1, 3.
[108] Ibid 2.
[109] Ibid 28.
[110] See, eg, Paul Herrnson, 'Improving Election Technology and Administration: Toward a Larger Federal Role in Elections?' (2002) 13 Stanford Law and Policy Review 147, 150–3.
[111] See Schwartz, above n 96, particularly 625–6; John Mintz and Dan Keating, above n 100; Bryan Mercurio, 'Democracy in Decline: Can Online Voting Save the American Electoral System' (2004) 22 John Marshall Journal of Computer and Information Law 409, 428–430.
[112] See, eg, Herrnson, above n 110.
[113] See the United Kingdom Electoral Commission web site located at <http://www.electoralcommission.gov.uk/about-us/> at 27 November 2003. The Commission is an independent body whose functions and powers are set out in the Political Parties, Elections and Referendums Act 2000 (UK) c 41.
[114] See Commonwealth Electoral Legislation Amendment Act 1983 (Cth).
[115] For an account of this, see Keith Ewing, 'Electoral Reform in the United Kingdom', in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 26–39.
[116] For an account of this, see Lowenstein, above n 4, 7–25.
[117] See Colin Barry, Paul Dacey, Tim Pickering and Debra Byrne, Electronic Voting and Electronic Counting of Votes: A Status Report (Australian Electoral Commission, 2001); Colin Barry, Paul Dacey, Tim Pickering and Tim Evans, eVolution Not Revolution: Electronic Voting Status Report 2 (Australian Electoral Commission, 2002). While not applicable in Australia, many countries view computerised voting as a way to bridge the generation gap of declining youth participation. See Mercurio, above n 111, 418–420.
[118] Commonwealth Electoral Act 1918 (Cth) s 234.
[119] Commonwealth Electoral Act 1918 (Cth) ss 184A, 186.
[120] See generally Bryan Mercurio, 'Discrimination in Electoral Law: Using Technology to Extend the Secret Ballot to Disabled and Illiterate Voters' (2003) 28 Alternative Law Journal 272.
[121] See ibid 273.
[122] Submission to the 2001 Joint Standing Committee on Electoral Matters (Mr B Wakelin MP, no 108).
[123] Submission to the 2001 Joint Standing Committee on Electoral Matters (AEC, no 174) 22.
[124] The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001 Federal Election, and Matters Related Thereto (2003) [4.9–4.93]; The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, The 1998 Federal Election: Report on the Inquiry into the Conduct of the 1998 Federal Election and Matters Related Thereto, Parl Paper No 128 (2000), 78–84. Both inquiries are also concerned about the high levels of assisted voting in some communities and corresponding mistrust between the voter and polling staff in those communities.
[125] See Perry Bacon, 'Optical-Scan Ballot Debuts for Primary; Write-In Count Will Not Benefit', The Washington Post (Washington DC, USA) 5 September 2002, D.03.
[126] Poole v Baltimore County and Maryland Board of Elections, No 02-3610 (D Md, 2002).
[127] For instance, Pennsylvania officials are negotiating a settlement that will see election officials providing e-voting systems to aid disabled voters. Plaintiffs in Texas lost their case at the appellate level, but the state subsequently passed a law requiring that any new voting system must make secret balloting available for blind and physically impaired voters. Litigation remains ongoing in Florida, although a new state statute requiring that any new voting system purchased must be accessible to visually and physically impaired voters, state officials refuse to settle any lawsuits or purchase any accessible voting machinery until the federal government provides promised (and much delayed) funding. See AAPD v Smith, 227 F Supp 2d 1276 (MD Fla, 2002) (reconsideration denied in AAPD v Hood, 278 F Supp 2d 1345 (MD Fla, 2003).
[128] See, eg, Kris Wise, 'Voting System to Change: County Moves Ahead without Guarantee of Federal Funds', Charleston Daily Mail (Charleston, USA) 3 March 2003, 1A (stating that West Virginia has allocated $3 million of the $10.5 million federal grant for election reform to be used to purchase handicapped-accessible voting machines); Cathy Willoughby, 'Hanging Chads Could Prove Costly', Advertiser-Tribune (Seneca, USA) 6 March 2003 (quoting the Chairman of the Seneca County Board of Elections, Mr Wayne Hoover, as stating '[new voting methods] have to meet all ADA requirements'); see also, the text of the above footnote.
[129] The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001 Federal Election, and Matters Related Thereto (2003) [7.54].
[130] Ibid [7.67].
[131] Disability Discrimination Act 1992 (Cth) s 24(1)(a). The extent to which the Disability Discrimination Act 1992 (Cth) can override express provisions of another Act remains unclear. Thus, it might be the case that the courts could, in fact, hold that the Commonwealth Electoral Act 1918 (Cth) is not subject to the equal protection clauses in the Disability Discrimination Act 1992 (Cth).
[132] See Disability Discrimination Act 1992 (Cth) s 24(2). See generally Mercurio, above n 7, especially 38–9, 47–8, 57–63; Mercurio, above n 120, 274.
[133] See Help America Vote Act 2002, 42 USC §§ 15301–545 (2002) ('Help America Vote Act'), which, among other things, defined and set deadlines for polling site and voting accessibility and mandated that polling sites provide at least one voting machine per polling place for private and independent voting by persons with disabilities. For more on the Help America Vote Act, see the League of Women Voters web site on representative democracy located at <http://www.lwv.org/where/promoting/votingrights_hava_advocatesguide.htm> at 27 November 2003.
[134] HREOC received two complaints relating to wheelchair access to the polling booth for the 2001 federal elections, while the AEC received 40 complaints 'of an access nature' for that election. The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001 Federal Election, and Matters Related Thereto (2003) [5.28] (citing Submission to the 2001 Joint Standing Committee on Electoral Matters (AEC, no 147) 25–6)). The AEC reports that the percentage of wheelchair accessible polling stations has improved from 40 per cent in 1993 to 75 per cent in 2001: at 25–6.
[135] See, eg, The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001 Federal Election, and Matters Related Thereto (2003), listing 'security' as a reason for its opposition to 'Internet voting' at [7.55]; however, the proposals to introduce computerized voting were not Internet-based. Therefore, the security problems associated with Internet voting (ie, hacker attacks) should not have been considered: at [7.55]. For a more detailed description of the various forms of computerised voting, see Mercurio, above n 7, 26–30.
[136] Such a campaign has been successfully attempted. For example, before the Florida congressional elections of 2002, some counties undertook to educate voters in the new system, taking the machines to grocery stores, music concerts and other public venues months before the election to demonstrate the technology and allow the public to trial the machine. Electoral staff also benefited from these demonstrations, as votes were retrieved as if it were a real election: see Bryan Mercurio, 'Beyond the Paper Ballot: Exploring Computerised Voting' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 230, 239.
[137] Other issues which need revisiting are provisions governing the recount, the secret ballot and privacy issues.
[138] On the potential for computerised voting in Australia as well as the safeguards the ACT had in place in the 2001 trial, see generally Mercurio, above n 136.
[139] See, eg, The Parliament of the Commonwealth of Australia, 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 Referendums, Report No 4, Parl Paper No 171 (1989).
[140] Dean Jaensch, The Liberals (1994) 183.
[141] Bennett, above n 43, 77. See also Sally Young, The Persuaders: Inside the Hidden Machine of Political Advertising (2004).
[142] Commonwealth Electoral Act 1918 (Cth) s 329(1).
[143] Evans v Crichton-Brown [1981] HCA 14; (1981) 147 CLR 169, 207–8.
[144] Bennett, above n 43, 77–8. A Parliamentary Committee believed that 'even though fair advertising is desirable it is not possible to control political advertising by legislation': at 77–8.
[145] David Bamford, 'Current Issues in Australian Electoral Law' (2002) 1 Election Law Journal 253, 256. South Australia is exceptional in having a 'truth in political advertising' provision: see Electoral Act 1985 (SA) s 113. In 1996, the Legal, Constitutional and Administrative Review Committee ('LCARC') of Queensland recommended the introduction of 'truth in political advertising' legislation in Queensland. See LCARC, Truth in Political Advertising, Report No 4, Legislative Assembly of Queensland, December 1996, 29. No such legislation was enacted. Interestingly, the LCARC in 2000 (with an entirely new composition) recommended against the introduction of 'truth in political advertising' legislation.
[146] See George Williams and Natalie Gray, 'A New Chapter in the Regulation of Truth in Political Advertising in Australia' (1997) 8 Public Law Review 110.
[147] See, eg, the Electoral Amendment (Political Honesty) Bill 2000 (Cth). The legislation mirrors s 113 of the Electoral Act 1985 (SA), which has withstood a challenge in the South Australian Supreme Court. The Court found the restriction on political speech was proportionate, as the public interest of ensuring the elector is not misled or deceived outweighed the restriction: Cameron v Becker [1995] SASC 5149; (1995) 64 SASR 238, 255 (Lander J).
[148] The provisions that do remain outline requirements for those authorising and printing election material (Commonwealth Electoral Act 1918 (Cth) ss 328–31) and restrict electronic forms of political advertising for the two days preceding an election (Broadcasting Services Act 1992 (Cth) sch 2).
[149] See Bamford, above n 145, 257.
[150] Sally Young, 'Spot On: The Role of Political Advertising in Australia' (2002) 37 Australian Journal of Political Science 81, 81.
[151] Ibid 84.
[152] For a critique of the Australian regulatory regime, see Joo-Cheong Tham, 'Campaign Finance Reform in Australia: Some Reasons for Reform' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 114–29.
[153] Unlike the UK and many continental democracies, Australia has no meaningful free air-time for candidates. While public broadcasters such as ABC and SBS provide some free air time, it is provided only at their discretion and not as a result of a legal requirement. In addition, the leadership debates televised by the commercially-driven stations only include the Prime Minister and the Opposition Leader and shut out all other party leaders, thereby re-affirming the two-party system.
[154] The unregulated campaign finance system also encourages major corporations to hedge their bets and donate to both major political parties, knowing that one of them will form government. For more on campaign finance, see Tham, above n 152
; Joo-Cheong Tham, 'Legal Regulation of Political Donations in Australia: Time for Change' in Glenn Patmore (ed) and Gary Jungwirth (series ed), The Big Makeover: A New Australian Constitution: Labor Essays 2002 (2001) 72–86; Graeme Orr, 'The Currency of Democracy: Campaign Finance Law in Australia' [2003] UNSWLawJl 1; (2003) 26 University of New South Wales Law Journal 1; Deborah Z Cass and Sonia Burrows, 'Commonwealth Regulation of Campaign Finance: Public Funding, Disclosure and Expenditure Limits' (2000) 22 Sydney Law Review 447; and Ewing, above n 115.
[155] The three-year period between 1995/96 to 1997/98 saw $29 million donated by corporations to political parties: see Tham, above n 154, 72.
[156] It is known that some gifts are made in exchange for a meeting with a member of parliament. See ibid 74–5.
[157] See Commonwealth Electoral Act 1918 (Cth) ss 287, 305, 305B, 314AEA, 320.
[158] Tham, above n 154, 84–5. The US's recent ban on 'soft money' was upheld substantially as constitutional by the United States Supreme Court in McConnell v Federal Election Commission, [2003] USSC 8661; 540 US 93 (2003). The Court upheld the ban on the 'soft money' that national political parties collected from corporations, labour unions and anyone wealthy enough to wish to donate. The law also restricts political advertising around election time. Candidates can now only collect up to $US2000 per donor in each election and parties can raise $25 000 per donor each year. For more information on that case, see Glen Justice, 'Court Ruling Affirms New Landscape of Campaign Finance', The New York Times (New York, USA), 11 December 2003, <http://www.nytimes.com/2003/12/11/national/11CAMP.html?th> at 12 December 2003.
[159] It has been argued that a ceiling or ban on donations would devastate parties, which rely on such funding to operate. Other criticisms include the possibility that such a ban might infringe an implied right of freedom of political association. See Tham, above n 154, 82.
[160] Cf Maley, above n 5, 40–51.