The right to vote. It's probably the most significant right an individual can have when living in a democratic society. So, even to question the right to vote...
Sounds a bit silly, Renato. You should know that. Of course people in Australia have a right to vote. Well, what if I told you that there's no express right to vote in the Australian Constitution?
Hello everyone, my name is Renato Costa, this is Aussie Law, and today we will discuss whether you have a Consti... constitutional right to vote. Let me start by repeating what I said before.
There is no express right to vote in the Australian Constitution. So I reckon the first argument someone could raise against this claim of mine was to open the Constitution and show me section 41. That's because section 41 talks about the rights of the electors of states and it says that 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. There you go! This is a clear example of the express right to vote in the Australian Constitution.
No? No, it's not. In 1972, the High Court of Australia, in a case called King and Jones, decided to read down the provision of section 41. They said that this provision referred to an adult. but according to the meaning of an adult person in 1901, when the constitution was enacted. This meant that individuals who were younger than 21 years, even if they were allowed to vote in their states, could not vote at a commonwealth election.
Later, in 1983, the High Court was once again returning to section 41 and interpreting it even more narrowly. This case was Iron Peace on Ex participica from 1983. The majority of the High Court in their occasion 621 said that that provision did not give an individual right to vote. That's right The High Court said that that provision, section 41 of the Australian Constitution, does not grant an individual right to vote But it does protect an individual right that already existed The section was more about the preservation of rights rather than a grant of individual rights Justices Brennan, Dean and Dawson said that the exercise of an existing right to vote at elections of the Commonwealth Parliament cannot be prevented by any law of the Commonwealth. But section 41 does not in terms confer a right to vote. So section 41 was once more interpreted as a historical provision.
It was a transitional provision. The effects of section 41 are already spent. Basically, the majority of the High Court said that this constitutional provision only applies to those who were considered to be adults in 1901. That is, if you were 21 years old or older when the Constitution was enacted, then section 41 applies to you.
So let me tell you something, you can only claim to have a right to vote according to section 41 if you are 142 years old or older. So all of you who are younger than 142 years old, let me tell you something, you know what you should do? You should click the like button and subscribe to our channel before it's too late.
According to the discussions during the drafting of the constitution, section 41 was included in the Australian constitution as a means to guarantee that women who had gained the right to vote in South Australia and Western Australia could also vote in a federal election once the Commonwealth enacted a uniform franchise. Okay, now, if the Australian constitution doesn't have an express right to vote, Then how come we have federal elections? The answer is that the High Court has identified an implied right to vote in the Australian Constitution. Where is this implication coming from?
What parts, provisions, words of the Constitution lead us to believe that there is this implied right to vote? Professor Graham Oh answers that question by saying that the absence of an explicit individual right to vote does not mean that the constitutional framework is irrelevant to the franchise. Section 8, 30 and 51, 36 of the Constitution empower the Federal Parliament to set its own franchise, subject to only two explicit qualifications.
The first is that the franchise is to be the same for the Senate and the House of Representatives. The second is that the electors shall have a single vote for each House. Section 30 of the Australian Constitution, mentioned by Graham Moore, says that until the Parliament otherwise provides The qualification of electors of members of House of Representatives shall be in each State that which is prescribed by the law of the State as a qualification of electors of the more numerous House of Parliament of the State. But in the choosing of members, each elector shall vote only once.
Section 8 of the Constitution refers to the same thing, but it's adapted to the reality of the Senate. It says that the qualification of electors of Senators shall be in each State by which is prescribed by this Constitution or by the Parliament, as a qualification for electors of members of the House of Representatives, but in the choosing of senators, each elector shall vote only once. And section 51.36, also mentioned by Professor Graham Moore, says that Parliament has the power to make laws with respect to matters in respect of which this Constitution makes provisions until the Parliament otherwise provides. So, for example, this section allows Parliament to legislate about the qualification of electors, as section 8 and 30 said.
All in all, these are provisions that do not guarantee a universal franchise or establish a broad conception about the qualification of electors akin to an individual right to vote. But they do sound like the constitutional framework allows for the possibility of democratic participation. It even uses some words like elections for federal parliament.
And it also establishes this idea that the representatives of the people will be directly chosen by the people. These assumptions become even stronger then when we read section 7 and 24 of the Australian Constitution. Both sections say that the representatives of either house, the House representatives of the Senate, will be directly chosen by the people.
The High Court of Australia has read the existence of a right to vote in the Australian Constitution according to the intention of the framers when using the words directly chosen by the people. According to the High Court of Australia then, these sections make a strong case for the existence of a right to vote in the Constitution. And more, they relate to the principle of representative government. This principle, coupled with the principle of responsible government, make up some of the pillars of the Australian legal system.
In my next video, we will talk about the principle of representative government. I hope to see you next week. Until then, tchau!