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’

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?