LAWS1115 Lecture 8
Parliamentary Structure and Representative Elections
Bicameralism: A ‘lower’ and ‘upper’ house
- Senate as House of Review (rather than ‘State’s House’)
- Senate can veto any legislation including budget
- But not initiate or amend taxes or money bills
- Government formed in lower house
- Upper Houses are continuing bodies
- Senators have longer terms than MHRs
- Senate not necessarily dissolved with House of Reps
- Queensland the odd one out
- Legislative Assembly without Legislative Council since 1921
- Upper House MLCs originally appointed
- As conservative check on democratic, majority rule
- Today, elected with element of proportional representation
- Should Queensland reinstate a Legislative Council?
Representative government or democracy
- Text and structure of Constitution erect a system of representative government
- eg ss 7, 24 ‘directly chosen by people’
- eg s 64 Ministers to sit in Parliament
- eg s 128 – referendum to amend
- But Constitution prescribes few rules of representative democracy
- eg no explicit right to ‘free speech’
- eg s 8, 30 state no-one can have two votes; but no explicit right to vote for all adults or citizens.
- Method of election, number of MPs left to parliament
- eg ss 9, 16, 31, 34
- Danger of constitutionalising obsessions of one generation
- eg s 44: disqualifications of Federal MPs
- Why exclude a ‘subject of foreign power’ ?
- Why exclude a ‘bankrupt’ ?
Who sets the ground rules?
- Parliamentary sovereignty
- Tradition to leave rules of politics to Parliament.
- Commonwealth Electoral Act – Independent AEC (‘integrity branch’)
- Entrenching political rights, fair processes
- The Court should scrutinise very carefully any claim that freedom of communication must be restricted … to protect the integrity of the political process’
- Mason CJ in ACTV case
McKinlay’s case (1975)
- Should everyone’s vote be equally weighted? OR What ‘interests’ are represented?
- In the 1970s:
- Queensland had a ‘zonal’ distribution of Parliament
- ’Country’ seats about half size of city.
- South Australia’s Constitution gave 1/3rd of seats to Adelaide with 60% of population
- Federal House of Reps: At time of mapping electorates, aim for at most 20% difference in size
- Challenged in McKinlay: argued for ‘one-vote, one-value’
- Queensland had a ‘zonal’ distribution of Parliament
McKinlay’s case – judicial deference
- Barwick CJ: ‘mere slogan or political catch-cry’
- Where could 1v-1v be rooted in Constitution?
- Original States guaranteed 5 MHRs however small
- s 24 merely requires electorates to be proportionate to State population
- NB: Constitution says nothing about State parliaments
- Cf Murphy J: followed US precedent implying mathematical equality, as nearly as practicable.
- Three other judges suggested ‘chosen by people’ implied an outer limit against gross disparities in electorate size.
Roach’s case – universal suffrage
- Can Parliament exclude a group of people from voting?
- Of course: children, those of ‘unsound mind’
- But women? Indigenous Australians?
- Ms Roach was an Indigenous woman serving sentence.
- Howard parliament banned anyone in prison under sentence (however short) from Federal franchise.
- High Court
- Universal adult franchise implied due to ‘changed historical circumstance including legislative history’
- Parliament can only restrict universal franchise with ‘substantial reasons’
- ‘Arbitrary’ to exclude ‘short term’ prisoners.
- Yet disenfranchising longer term prisoners appropriate/adapted to permissible, symbolic aim.
- Not the same as an individual right to vote
- Is limiting franchise to citizens okay?
- Is limiting franchise of ex-pat Australians okay?
page revision: 5, last edited: 03 Mar 2011 13:22