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An essential feature of any democratic system is the holding of regular elections that lead to the creation of the government of a nation. It is often said that such elections should be 'free and fair'.[1] Some obviously fail this test. For example, observers, including representatives of the European Union ('EU') and the Commonwealth, found that in recent elections in Zimbabwe the number of polling stations was reduced in strong opposition areas, the body supervising the election was unqualified and the ruling party (Zanu-PF) used violence, intimidation, bribery and vote-rigging to secure re-election.[2] Of course, elections need not be so blatantly violent or corrupt to fail the 'free and fair' standard. International observers and opposition parties have, for instance, criticised the recent Russian elections because the state run television station promoted the ruling party while criticising and defaming the challengers.[3]
By contrast, it is often assumed that elections in nations with long-standing democratic traditions and processes, such as Australia, Canada, the United Kingdom ('UK') and the United States ('US'), are 'free and fair'. Elections in those nations may be seen as setting the standard for elections elsewhere. With some exceptions, such as the 2000 US Presidential election between George Bush and Al Gore,[4] these electoral systems may be taken to set, almost by default, the standard of what is a 'free and fair' election.[5]
In this article, we examine in more depth whether the Australian electoral system is indeed 'free and fair'. There are many ways of approaching this question, including through political science or statistical analysis of the different voting systems operating in Australia and of the different legal regimes at the federal level, in the States and Territories and for local government. Our approach is to examine the law of Australia's electoral system, with the primary focus upon the federal aspect of that system. While for many there would be an immediate and resounding 'yes' to whether this system of law creates a 'free and fair' federal electoral system, our answer is more qualified.
Part II of this article explores the 'free and fair' standard as a gauge of electoral law. Part III then measures the Australian record against this standard. We do not seek to comprehensively analyse Australian electoral law (such an audit is beyond the scope of this paper),[6] but instead focus upon key areas that have been either the subject of litigation or intense debate in recent years. Part IV concludes that, although the Australian system of electoral law is in many respects a 'free and fair' system, and has some obvious and important strengths, it is in other areas not 'free and fair' and is in need for reform.
The cry that elections should be 'free and fair' is often used rhetorically. It also provides a useful and generally accepted analytical standard against which electoral systems can be assessed. In this article, we view 'free and fair' elections as embodying the four principles set out below, which we have developed from two comprehensive studies. The first study is a White House commissioned report by the US National Science Foundation, Internet Policy Institute and the University of Maryland. The report was the product of an October 2000 workshop in which political scientists, computer scientists, election officials and others analysed and assessed the feasibility of, and identified research priorities for, the advancement of Internet voting.[7] The second study was conducted in 1998 by KPMG for Elections Canada
entitled[ ]Technology and the Voting Process.88 See Elections Canada, Technology and the Voting Process (1998) 14–15 <http://www.elections.ca/loi/vot/votingprocess_e.pdf> .
In addition, we have also used other sources, such as the United Nations Organisation for Security and Co-operation in Europe ('OSCE') Copenhagen Commitments, to further ensure that these principles are soundly based.[9]
The first principle of 'free and fair' elections is the participation principle. It mandates that electoral systems provide all citizens with an equal opportunity to participate in the electoral process and to access the ballot box. This principle requires conferring the right to vote in elections on a non-discriminatory basis, as opposed to a system that denies the right to vote to certain sections of the community or to people in an arbitrary manner. The principle is necessarily subject to reasonable limitations and exceptions, such as in relation to age. For example, the Commonwealth Electoral Act 1918 (Cth) limits the right to vote to Australian citizens who are at least 18 years of age.[10] It also excludes from the franchise people who, by reason of being of unsound mind, are incapable of understanding the nature and significance of enrolment and voting, prisoners serving a sentence of three years or longer (recently reduced from five years), people who have been convicted of treason and not pardoned and overseas citizens who do not intend to return to Australia within six years.[11]
This first principle also requires that citizens have the right to form and participate in political parties, and that those parties have the opportunity to contest elections. Of course, as is the case with individual access to the ballot box, reasonable limits may be placed on political parties. For instance, it may be reasonable for legislation to require parties to register before standing in an election.[12] It may also be reasonable to require a small deposit from candidates to maintain the sanctity of the process and to ensure against a multitude of candidates contesting the election for no other reason then to see their name in print.[13]
The second principle is the free-conscience principle. It requires that voters be able to cast their vote without undue influence, the threat of intimidation or coercion. In other words, voters must be allowed to vote with a free conscience as opposed to being instructed or otherwise coerced into voting for a particular candidate. Today, most democracies use some form of secret ballot to ensure that others do not compel or coerce a voter. In Australia, voters are given an unmarked, untraceable ballot paper and retire to a private booth to mark the paper before folding and placing it in a common locked box.[14] On the other hand, regimes including that of Fidel Castro's Cuba and the former Iraqi regime under Saddam Hussein have held elections whereby government officials watch and sometimes instruct candidates on how to cast their ballot.[15]
The third principle is the election outcome principle. This requires that the electoral system accurately record, store and count each vote and accurately report the outcome. Votes should not be lost, intentionally disposed of, amended, miscounted or misreported. This principle requires not only that this occurs, but that the people are confident that they have indeed occurred (such as through adequate access to the workings of the electoral process and scrutiny of the count[16]). The need to maintain public confidence is one reason why electoral law reform in advanced democracies can be a slow and deliberate process.
The fourth principle of 'free and fair' elections is the knowledge principle. It requires that voters possess at least a general knowledge about the voting process, the general structure of government and the candidates and parties contesting the election. Without this, there can be no certainty that the electoral system accurately records voter preferences. For example, a lack of adequate voter knowledge may mean that a voter's preference as expressed on their ballot is distorted by voter error or ignorance as to the effect of voting in a particular way (including as to how this may affect the formation of a government). Distortion may also result from a voter not being aware of the candidates' platforms or parties' directives. In order to meet the knowledge principle, governments and electoral authorities need to educate voters on how the electoral system works, including on basic issues such as how to register to vote and how to correctly fill in a ballot paper. In addition, the government and electoral authorities must ensure that candidates and political parties have the right and opportunity to express and publicise their policies.
While these four principles encapsulate the core features of a 'free and fair' electoral system, they are not exhaustive. For example, a further principle might be that the electoral system enables the formation of governments that have the support of the majority of the voters, as opposed to a system that can allow governments to be formed with a minority of votes. The principles are also not static, but continue to develop to reflect international best practice in the area as well as community standards. For example, from Roman times up until the mid-to-late nineteenth century, it was not only an accepted practice but a guiding principle of democracy and 'free and fair' elections that voters declare their vote in a public forum. This avoided many modern controversies about the final tally and concerns over the intent of the voter. It was also thought that a voter only truly exercised his (of course, women were excluded from the franchise at this time) rights as a citizen when he publicly declared allegiance to a particular candidate. Yet today an election that required voters to publicly declare their choice of candidates would likely be seen as being an intrusion into voter privacy as well as inconsistent with the free-conscience principle given the reprisals that could result from such an open system of voting.[17]
In addition, even where a principle has not changed, its application may differ over time. For example, it was once seen as an acceptable limitation to the participation principle to exclude women from the franchise, as well as men who did not own property in the jurisdiction or were illiterate. These would not be accepted as appropriate limitations today. For example, in Australia the right to vote is now held equally by people who own property or are homeless, with the Commonwealth Electoral Act 1918 containing a special regime directed at ensuring that the votes of people who are homeless are collected.[18] In the future, it may not be not seen as reasonable to deny the right to vote to prisoners[19] or to Australian citizens living overseas or to people aged between 16 and 18.
Well before Federation in 1901, the Australian colonies experimented with different electoral systems.[20] Not willing to accept the perceived injustices of the inherited British electoral system, mid-nineteenth century colonists were at the cutting edge of electoral practice and were generally regarded as innovators and leaders in the field.[21] In doing so they sought to bring about a system that could be described, according to the values of the time, as being 'free and fair'.[22] It might be thought that, based upon this record of nineteenth and early twentieth century innovation, Australia today retains a system of electoral law that meets this standard. Below, we analyse this issue in more detail with reference to some of the key features of the contemporary electoral system as defined by law.[23]
While the participation principle requires that the time and place of voting be publicised and the polling places freely accessible to voters, the free-conscience principle further requires that the act of voting be done in secret and that an individual's ballot not be traceable to that person. The importance of this ballot system is now widely recognised and the secret ballot is regarded as a central feature of democratic electoral systems and of the idea of a free vote. According to leading American scholar Robert A Dahl, a country in which the secrecy of the vote is widely violated is 'lacking free and fair elections'.[24]
In 1856, Victoria and South Australia inaugurated a voting revolution by introducing the technique of secret voting using printed ballots and ballot boxes.[25] Within the space of three years, the secret ballot spread through all the colonies, except Western Australia.[26]
Australia was fertile ground for this innovation because it was free of the longstanding legal, institutional and cultural practices and assumptions of the UK. The success of the secret ballot in Australia led to its adoption in many overseas jurisdictions, although it took 65 years for the secret ballot to be introduced in all western democracies.[27]
The invention and adoption of the secret ballot in Australia was part of the long struggle for universal suffrage. It became a practical manifestation of a deep shift in the way the vote came to be seen as a talisman of an egalitarian society. It reflected the democratic notion that participation in government was an inalienable birthright that had not only to be shared equally and broadly, but had to be exercised, like an act of individual expression, in free conscience. Curiously, in a development not universally shared, the ballot in Australia quickly became characterised by absolute, rather than merely limited, secrecy. That is, individual ballots became untraceable once cast, a fact that rankles with those concerned today about ballot purity and the potential for electoral fraud.[28]
Prior to the secret ballot, electors were polled by voice at a public forum.[29] It had been thought in western nations that public voting was necessary to ensure an open and transparent process and hence public voting was the electoral procedure most closely associated with democracy. Secret voting, by comparison, was viewed as aristocratic and closed in nature and open to widespread abuse and fraud. Defenders of public voting came from across the ideological divisions of the time, with critics of the secret ballot including liberals such as John Stuart Mill[30] and Alexis de Tocqueville[31] as well as conservatives such as Lord Russell in England and Germany's Otto von Bismarck, Rudolf von Gneist and Heinrich von Sybel and, later, Carl Schmitt.[32]
Attitudes changed with the introduction of the secret ballot throughout the world. The prevailing view became that public voting resulted in voters being more susceptible to bribery, intimidation, corruption and undue influence and that some voters could be disenfranchised and left as voiceless, vulnerable and dependent.
Elections in Australia are unusual in the western democratic world in having a participation rate in federal elections at around 95 per cent of citizens eligible to vote. While this reflects how bodies such as the Australian Electoral Commission ('AEC') have been effective in educating and alerting potential voters to upcoming elections, it is also a result of such elections being conducted upon a system of compulsory voting.[33] In this, Australia is one of a relatively few democratic countries, and the only English speaking country, where enrolling and turning up to vote is mandatory.[34]
In 1914, Queensland became the first State to introduce compulsory voting. With bi-partisan support, compulsory voting was adopted federally in 1924[35] and all States had adopted compulsory voting by 1942.[36] Today, s 245(1) of the Commonwealth Electoral Act 1918 states: 'It shall be the duty of every elector to vote at each election.' The section goes on to establish a penalty of $20 (or $50 plus costs if the matter is dealt with by a court) for electors who fail to vote and who cannot provide a valid and sufficient reason for not doing so.[37] Sections 239 and 240 also provide that voters 'shall' mark their ballot papers in the prescribed way in order to achieve a formal vote. However, the Act does not actually compel a person to mark their ballot paper to affirmatively select a candidate and a voter could choose to cast an informal ballot. The Act merely requires attendance at the polling booth and the depositing of the voting paper in the ballot box.[38]
Before the adoption of compulsory voting, Australia suffered, as do many nations today with voluntary voting, from low turnouts. In fact, the 1903 federal election saw only 47 per cent of eligible voters go to the polls. While the figure increased to 77 per cent in the 1917 election, it dropped to 58 per cent in 1922.[39] Today, for all eligible voting ages, the current participation rate is at around 95 per cent of all persons enrolled to vote (Australia's enrolment rate is also approximately 95 per cent of all persons eligible to enrol). Combined with provisional enrolment for 17 year olds, compulsion encourages high youth enrolment levels, which in 2001 represented 77 per cent of 18 year olds, a figure that rose to 87 per cent of 20 year olds.[40] This high level of enrolment is matched by only a handful of countries in the democratic world.[41]
Compulsory voting in Australia retains widespread community[42]
and political support.[43] Nevertheless, some criticise it as undemocratic in denying a right not to participate in the electoral process, and in 1997 the majority on the Joint Standing Committee on Electoral Matters ('JSCEM') recommended the abolition of compulsory voting for federal elections and referendums.[44] The Committee found that '[i]f Australia is to consider itself a mature democracy, compulsory voting should be abolished.'[45]
There is also a tension between compulsory voting and the knowledge principle. Compulsory voting places a high burden on bodies like the AEC, which must design education programs not only for those Australians interested in the political process but also for those who are uninterested but nonetheless compelled to vote. The obvious difficulties in the latter area may make it almost impossible to record the real preferences of this group without distortion due to a lack of knowledge of the electoral process and the policies of those vying for office. There is no specific data on the knowledge of those who would choose not to vote, but surveys more generally of the population reveal that many Australians have little understanding of how the Australian system of government works. For example, the 1994 report of the Civics Expert Group[46] found that only 18 per cent of Australians have some understanding of what their Constitution contains (which may impede knowledge of matters such as which tier of government has responsibility for the issues that most affect a person's vote), while only 40 per cent could correctly name both Houses of the federal Parliament (which may affect voting where a person's preference is that one party forms government but is checked by a different party in the upper house).
While Australia has a high percentage of eligible voters who are enrolled to vote and cast a vote, this provides only part of the story. Further analysis, including who actually comprises the category of eligible voters and hence which citizens are excluded from that figure, is required to assess whether Australia (or any other nation) is fulfilling the participation principle. For example, a nation that only allows male landowners over the age of thirty-five to vote might be able to claim that 100 per cent of the eligible voters cast a ballot, yet the exclusion of women, individuals who do not own land and people under thirty-five years of age calls the election into question.
The record of the Australian electoral system is mixed. On one hand, Australia was a pioneer in the extension of the vote towards universal suffrage. South Australia became the first colony to implement adult male suffrage in 1856, quickly followed by Victoria, New South Wales and Queensland, respectively. In 1894, South Australia became the first colony to introduce political rights for women and grant full adult suffrage as well as the right for women to stand for election. The Commonwealth granted equal rights to women in voting and the right to stand for election in 1902, and by 1909 all State lower houses were elected by adult suffrage. Women could stand for election in every State by 1923. South Australia also led the way in disbanding plural voting (a system by which property owners got more votes), which it banned in 1856.[47]
On the other hand, while Australia achieved much in the mid-late nineteenth century, certain limitations on the franchise remained in the twentieth century. For instance, limitations on the election of the upper house in some States remained until recent times.[48] Of more concern was that the 1902 uniform federal franchise[49]
failed to grant the vote to Indigenous Australians.[50] It had been proposed that the Bill also extend the franchise to Aboriginal Australians. However, this was strongly resisted and was finally defeated. Among its opponents were Isaac Isaacs, subsequently Chief Justice of the High Court and Australia's first Australian Governor-General, who thought Aborigines 'have not the intelligence, interest, or capacity' to vote;[51] and Henry Higgins, later a Justice of the High Court, who thought it 'utterly inappropriate … [to] ask them to exercise an intelligent vote.'[52] As finally enacted, s 4 of the Commonwealth Franchise Act 1902 (Cth) denied the voting rights of the 'aboriginal native[s] of Australia … unless so entitled under section forty-one of the Constitution.' It was not until 1962 that the Commonwealth Electoral Act 1918 was amended to extend universal adult suffrage to Aboriginal people.[53] In the meantime, even when Aboriginal people were entitled to vote as a matter of law under s 41 of the Constitution, as a matter of administrative practice they were denied that right.[54] Even after 1962, unlike other Australians, it was not compulsory for Indigenous people to enrol to vote.[55] Equality for Indigenous people at Commonwealth elections did not eventuate until 1983, when the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) made enrolment for and voting in Commonwealth elections compulsory for Aboriginal Australians.[56]
The Commonwealth Electoral Act 1918 still denies the franchise to people sentenced to imprisonment for three years or more and any persons who 'has been convicted of treason or treachery and has not been pardoned'.[57] The number of Australians thereby disenfranchised has been estimated at 6000 and 11 000, although this figure was calculated when law excluded those people who had been sentenced to five or more years in prison.[58] The only other group of adult citizens residing in Australia denied the right to vote are those with unsound mind, incapable of understanding the nature and significance of the electoral process. Australia is not alone in denying the right of convicted persons to vote. In fact, many nations, including the US (where voting is a constitutional right) similarly deny the franchise to convicted persons.[59] In denying a section of the population the right to participate in the electoral process, nations risk violating the participation principle which requires that (with reasonable exceptions) all citizens have access to the ballot. Of course, much depends upon what is reasonable and commentators still debate whether restrictions on convicted persons are appropriate.[60]
Australia has experimented with different forms of voting. In fact, all the major forms of preferential voting, including the alternative vote, contingent vote and Hare-Clark (using the single transferable vote) were developed largely in Australia.[61]
Until 1918, Australia relied on the first-past-the-post system for parliamentary elections. Under this method, the candidate that receives the most votes is elected. The method is simple, but its shortcoming is that the winner can be elected even though the majority could prefer other candidates, and votes for minor parties are effectively wasted.[62] The Commonwealth decided to improve upon this system and introduced preferential voting for federal elections in 1918.[63]
Contingent, that is, optional preferential voting, was used in Queensland as early as the 1890s, and today applies at State elections in both that State and in New South Wales.[64]
Whilst it avoids most of the concerns about forcing to choose between disliked candidates, those who support compelling full preferences fear that a significant failure to specify preferences could reduce the system into a de facto first-past-the-post system.
Another experiment in Australian voting systems was proportional representation, with its introduction in Senate elections in 1949.[65] It is sometimes trumpeted as the most democratic form of voting system[66]
because it allows popular will to be more accurately reflected in parliament and increases the chances of minority parties achieving representation.[67]
However, the system in practice has proved less than perfect, including because, as applied in federal elections, it effectively excludes the possibility of an independent Senate candidate from being elected. In federal elections and most State and Territory elections, the system of proportional voting allows a 'tick a box' voting option whereby voters simply check the box of their preferred party instead of having to mark their entire ballot. As Senate ballots are often very long and confusing, over 90 per cent of electors make use of this convenient option, thereby giving the parties control of voter preferences.[68] Independent candidates are grouped together and relegated to the far right end of the usually long Senate ballot and can only be voted for if a voter decides to mark all of the individual boxes on the ballot paper rather than voting 'above the line'.[69] In practice, this means that it is almost impossible for any new independent to be elected. Further, exceptions are made for independents already in Parliament to enable them to take advantage of the 'tick a box' system of voting as if they belonged to a political party.[70]
There are other ways in which incumbents also have a substantial edge over challengers, particularly those challengers from minor parties or independents. Parliamentary resources are only available to members and even 'parliamentary' parties. While an exhaustive list of such benefits is too long to list in this article, some of the more noteworthy include mailing and printing allowances and the use of, and abuse of, government advertising budgets for image conscious advertising throughout the life of a government.[71]
A form of voter equality, known popularly as 'one vote, one value', has been adopted in Australia at the federal level and in all States and Territories, except Western Australia (the only State to retain weighting for rural and remote electorates).[72] In the Australian context, 'one vote, one value' suggests that people ought to vote for a member of parliament as part of electorates of equal size, thereby ensuring that each vote is of equal weight. This is implemented by the Commonwealth Electoral Act 1918 Part IV — 'Electoral Divisions'. Section 66 states that while the size of an electorate may be affected by factors such as the 'community of interests within the proposed Electoral Division, including economic, social and regional interests', it also states that in no case shall the size of an electorate depart from the average 'to a greater extent than one-tenth more or one-tenth less'.
The capacity for voter equality is, however, limited by the Constitution. Section 24 dictates that each of the States must have at least five members in the House of Representatives, meaning that a small State like Tasmania has more seats than its relative population size would suggest. It is also limited by s 7, which states that the Senate must be based upon the 'equal representation' of the States. As a result, Tasmanian voters possess far greater voting power in electing 12 Senators than their counterparts in say New South Wales and Victoria in electing the same number.
These constitutional provisions are one reason why, unlike the US Supreme Court, the Australian High Court has not held that voter equality is constitutionally prescribed. There are, however, some limits set by the Constitution, especially s 24. For example, in Attorney-General (Cth) ex rel McKinlay v Commonwealth,[73] it was suggested that, in some situations, there might be such a degree of malapportionment between electoral divisions as to bring into question whether the Parliament had been 'directly chosen by the people' under s 24. Mason J stated:
It is perhaps conceivable that variations in the numbers of electors or people in single member electorates could become so grossly disproportionate as to raise a question whether an election held on boundaries so drawn would produce a House of Representatives composed of members directly chosen by the people of the Commonwealth.[74]
McTiernan and Jacobs JJ, in a joint judgment,[75] and Stephen J, in a separate judgment,[76] voiced similar views.
Otherwise, the High Court has left the question of electoral equality to parliaments.[77] In McGinty v Western Australia,[78] the Court denied a challenge to the large disparity existing between the numbers of enrolled electors in metropolitan districts compared with those in country regions in Western Australian State elections. It was argued that the disparities in voting power were inconsistent with the principle of representative democracy and that, just as ss 7 and 24 of the Constitution could support an implied freedom of political communication,[79] so too could it support a guarantee of voter equality in State elections.[80] The Court, by a four to two majority, found no constitutional requirement for equal numbers of people in such elections could be derived either from the Commonwealth or West Australian Constitutions. Hence, subject to the possibility that electorates might be 'grossly disproportionate' in size to each other, it was left to that Parliament to determine the extent to which it wanted to implement 'one vote, one value'.[81]
This issue remains contentious in Western Australia and a recent legislative attempt to enact voter equality legislation in that State has failed in the High Court due to the law having passed through the Legislative Council of Western Australia without the required absolute majority.[82]
The debate over one vote, one value is characterised by two main positions: either electoral districts should comprise equal voter numbers or, in the interests of fairness to rural voters, electoral districts should be weighted in favour of those interests.[83] The issue is thereby exposed as an argument between equality of 'voting power' versus equality of 'representation'.[84] Those seeking to introduce electoral equality in Western Australia do so because they believe it to be an essential feature of electoral democracy. They would argue that because the current system denies voters equality in the form of 'one vote, one value' the State fails to comply with the first principle of electoral democracy, that is, that all voters have equal access to the ballot box.
On the other hand, others would contend that there is more to electoral equality than simply dividing the population into evenly divided precincts. They claim that Western Australia's vast, sparsely populated geography, as well as its tradition of 'relative equality' and responsibility for the protection for minority groups must be factored in when attempting to achieve electoral equality.[85] The main argument against the notion of 'one vote, one value' is that fewer electors in rural electorates (as opposed to geographically smaller city electorates) are required to enable electors in rural and remote regions to have equivalent representation to those in more populated areas. Without weighted votes, they believe rural and remote representation would suffer even more than it currently does.[86] In such a case, they argue that the geographic size of an electorate is an important consideration that should be taken into account in determining whether voter equality has been achieved.[87] Nevertheless, it seems hard to justify the weighting in Western Australia when most of the other Australian States also experience geographical difficulties in the creation of electorates, yet they no longer differentiate to the same extent between metropolitan and non-metropolitan zones in applying the principle of voter equality, or one vote, one value.
Australia's reputation as a leader in the field of elections is based in part upon the strength of the administrative apparatus that supports its electoral system. The most important feature of this apparatus is the independent, professional bodies that administer elections in Australia. These bodies are essential both to the third (election outcome) and fourth (knowledge) principles of 'free and fair' elections. They ensure a professional administration of the electoral process as well as confidence in and knowledge of the system by the community at large.
The beginnings of professional electoral administration can be traced to pre-Federation times. In contrast to the UK, where powerful local authorities closely controlled the elections, the lack of entrenched local authorities in the recently colonised Australian continent aided the movement to the professional administration of elections. The colonies' first elections were conducted by public servants in a ministerial department, and were later given increased independence by the creation of statutory bodies. This trend culminated in the creation of the AEC in 1984 as a non-politicised, federal independent statutory body.[88] The AEC's ongoing freedom from executive influence and its practical independence through adequate funding are central to the integrity of the national electoral system.[89] Similar commissions exist in all of the States and Territories.
The AEC is formally constituted by a Chairperson, an Electoral Commissioner and one other person. The Chairperson 'shall be a person whose name is included in a list of the names of 3 eligible Judges submitted to the Governor-General for the purposes of this section by the Chief Justice of the Federal Court of Australia'.[90] The Electoral Commissioner and the one other member of the Commission can be removed by the Governor-General if he or she is absent from three consecutive meetings or fails, without reasonable excuse, to comply with his or her obligations.[91] The Governor-General also has the power to terminate, for misbehaviour, the Electoral Commissioner, the Deputy Electoral Commissioner or an Australian Electoral Officer for a State.[92] Of course, in a country with compulsory voting, 'non-partisan' electoral administrators do in fact favour, at least in casting their own vote, candidates and parties. However, no credible instances of bias on the part of AEC administrators have been raised.
The JSCEM was also created in 1984. This Committee is an important and influential innovation in providing a cross-party forum for debate on technical improvements in electoral administration. Prior to its formation, bipartisanship was harder to achieve.[93] Of course, no Committee process can eliminate the self-interest that parliamentarians naturally have in amending electoral legislation.[94] The JSCEM has a broad mandate and, as part of its duties, it also plays an important role in involving the community by calling for and receiving submissions from the public, of reviewing current electoral practices and recommending both legal and structural changes to the electoral system.[95]
The strength of Australia's non-partisan, independent and centralised system of electoral administration can be gauged when it is contrasted to that of other western nations such as the US. In the US, electoral administration is governed by each individual state, as opposed to a central authority. Such decentralised governance causes numerous disparities in the system. For instance, various states may have different eligibility requirements (some states disenfranchise anyone convicted of a felony and others do not), may have different voter registration periods and even different rules and procedures governing who can vote in which elections (such as primaries). Some key electoral choices are even left up to city and town councils. This could lead to unequal voting power between electorates. For example, in many states, local towns and electorates decide which voting technology a voting booth will use. This can lead to poor and minority voters being under-represented.
Indeed, statistics from the 2000 US Presidential election demonstrate that minority votes are more likely to be miscounted, misplaced, disregarded, or otherwise uncounted. This inequality is primarily due to the fact that minority precincts cannot afford to purchase state-of-the-art voting machines and are forced to rely on outdated voting technology to record and count the vote.[96] For example, the Florida county of Gasden, the only Florida county where black voters make up a majority of the electorate, is a poor county that uses outdated voting technology. As a result, in the 2000 election, voters in Gasden had a 68 times greater chance of having their votes deemed invalid than in adjoining Leon County, a county that could afford to purchase the latest voting technology.[97]
This scenario of one county using unreliable voting technology while another county in the same state uses a more reliable method of recording and tabulating votes creates a 'voting technology divide'.[98] In the 2000 election, over 2000 Gasden County votes were deemed invalid in an election decided by only 537 votes, leading one to question whether differences in voting technology have the potential to alter state-wide election outcomes.[99] As only nine states voted with uniform or near-uniform technology, this gap is not peculiar to Florida. Instead, the 'voting technology divide' is present in almost every state in the nation.
Many post-2000 investigations reveal that problems with uncounted ballots are particularly concentrated in disadvantaged communities. For example, it has been found that in 'many black precincts in Chicago, one of every six ballots in the presidential election was thrown out' but that the uncounted rate for suburban precincts was virtually nil.[100] Moreover, as many as one in three votes were uncounted in black sections of Jacksonville, Florida, a rate 400 per cent above the uncounted rate in predominantly white precincts.[101] Black voters in Ohio also appear to have been disadvantaged, with a vast majority of the uncounted votes in that state being from poorer, predominantly black precincts.[102] These are but a few examples that prove the 'voting technology divide' is real and significantly disadvantages minority voters.
Perhaps the most convincing evidence of the divide is the results of a study conducted by Representative Henry A Waxman, the Ranking Minority Member of the Committee on Government Reform of the US Congress.[103] The study was commissioned to examine whether voting technology can reduce the rate of uncounted ballots. Detroit was chosen as the location of the study for a number of reasons, including the fact that it recently made a substantial effort to reduce uncounted ballots and the fact that it has one of the highest minority populations (African-Americans make up 76 per cent of the population) and the highest poverty rate of any US city (32 per cent of the population live below the poverty line).[104]
Detroit upgraded its electoral system in 1998 and replaced punch-card voting with an optical scan system that allowed voters to view and amend their ballots before leaving the polling booth. The change resulted in the overall percentage of uncounted votes in Detroit decreasing from 3.1 per cent of the ballots cast in 1996 to 1.1 per cent of ballots cast in 2000 (in other words, from over 50 per cent above the national average in the 1996 election to almost 50 per cent below the national average in 2000).[105] The city saw an across the board reduction in the number of uncounted ballots, with every precinct reducing its percentage of uncounted votes from 1996 to the 2000 election and some precincts reducing their uncounted rate from over 7 per cent in 1996 to less than 1 per cent in 2000.[106]
Another study, conducted by the Cal Tech-MIT Voting Technology Project, also revealed the effects of the 'voting technology divide'.[107] The study found that voting equipment has strong and 'substantial effects' on the rate of uncounted votes, with the difference between the best performing voting equipment and the worst performing voting equipment being as much as 2 per cent of ballots cast.[108] As five of the last 20 presidential elections have been determined by less than 2 per cent of the vote, this finding casts doubt on the reliability of many past election results.[109]
Both studies confirm the existence of a 'voting technology divide' and the direct correlation between voting equipment and the rate of invalid votes. In the wake of the 2000 Presidential election, some American academics and commentators have recommended the end to partisan interests controlling elections and have called for a neutral agency to administer the process to overcome this and other problems.[110] Many more have also criticised the lack of uniformity among local and state election boards, citing a disparity of resources among districts, with some poorer districts having high informal voting and antiquated electoral technology,[111]
with at least one academic showing that the lack of a central electoral agency plays a large part in the shortcomings of the American voter registration, polling place operations and vote counting systems.[112]
American attitudes towards electoral administration are shifting away from partisan, localised processes. This re-thinking may be only a few years behind that of the UK, which had a non-partisan but not independent electoral bureaucracy until it created an independent Electoral Commission accountable to Parliament in November 2000.[113] It appears, then, that the problems with the US electoral system may not be resolved until it moves to a centralised, non-partisan system of electoral administration and governance. Fortunately, Australia already has a strong system of this kind in place.
The preceding section illustrates some of the strengths and weaknesses of key aspects of the Australian electoral law framework. While the system, on the whole, has much to be commended, it should not rest on its past achievements in what is an evolving area. Although subject to machinery reform at the federal level via the JSCEM process, the deeper structure of electoral law has remained largely unchanged for many years, with the last substantial overhaul taking effect in 1984.[114] Whilst this is a reflection of the historical strength of Australia's system of electoral law, it is also something of a conceit for Australia to continue to claim to be a leading innovator in electoral law and practice. The UK for instance, long thought of as lagging behind in this field, has in the late 1990s engaged in more significant debate and reform than Australia.[115]
Many of the challenges now facing the Australian electoral system are legal in origin. The experience of the 2000 US Presidential election demonstrated how a lack of forethought regarding the design of an electoral law system can create a situation where judges can effectively be left to decide the outcome of an election.[116]
Like the preceding section, the following is not meant to be an exhaustive list of the challenges that face contemporary electoral law, nor does it attempt to provide solutions to those challenges. Rather, it examines key issues that have either been the subject of recent litigation or intense debate. It explores some of the main problems that face those interested in Australian electoral law and the type of revitalisation that system requires in order for Australia to ensure that its elections remain 'free and fair'.
The maintenance of public confidence is a primary reason for electoral administrators hesitating before adopting new voting methods to improve upon the systems currently in place. Where elections are concerned, the official results must be scrupulously accurate. The electoral process of registering voters, generating ballots, and casting and counting votes are increasingly becoming automated in many nations, with electronic machines replacing humans in many areas of the electoral process. The use of computers to make voting more accessible and vote counting faster and more reliable is a natural extension of the burgeoning technology. Moreover, a system of computerised voting would appear to have several advantages over the traditional form of voting. A perfected computerised system might be a more secure, cost effective, efficient, convenient and environmentally friendly way to vote. For these reasons, many countries have adopted, or are in the process of implementing, computerised voting. The AEC, while not at the forefront of activity in the area, sponsored a study on the issue in 2001 and again in 2002.[117]
Another reason many nations are introducing computerised voting, and an important reason why Australia should further investigate such possibilities, is for its ability to grant the secret ballot to voters unable to vote without assistance under traditional voting methods. This group of voters (special needs voters) comprises a substantial, yet indeterminate number of all voters, and includes disabled voters with impaired vision or limited arm movements as well as illiterate voters and those voters from non-English speaking backgrounds who may not feel comfortable reading or writing in English. These voters are at present given the option of either voting with assistance at the polling station[118] or registering as a General Postal Voter ('GPV') and having election materials and a paper ballot sent to their home through the post.[119] Neither option is acceptable.
Voting with assistance at the polling station means that voters are denied the rights and protections associated with the secret ballot.[120] In addition, many voters feel that being forced to tell someone else their vote is degrading and violates the spirit of the secret ballot.[121] Voting as a GPV is also unworkable for many as the election materials and ballot paper are only available and posted in print form. Blind, limited arm movement and illiterate voters are reminded again of their dependency by being forced to rely on others, in effect, to vote for them. In addition, having disabled and illiterate voters voting by post segregates them from the rest of the voting public on polling day and excludes them from receiving polling day literature (such as how-to-vote cards) or from considering late-breaking political developments. To many Australians, the act of voting at the ballot box is an ingrained part of the election process. Special needs voters should not be excluded from this important manifestation of democracy in action.
While some may view the current inequality as a minor degradation or burden, and rationalise that the government could better allocate scarce resources to other causes, the issue of genuine equality is of the great importance to those voters denied the right to vote in secret. Physically challenged members of our community are often treated differently and separated from the rest of society simply because of their physical situation. At times, this treatment is inescapable. But such treatment should be minimised and avoided if reasonably possible. Similarly, forcing voters who cannot sufficiently read and write the English language (whether through a lack of education or non-English background) to admit this deficiency and vote with assistance adds unnecessary embarrassment and could subject the voter to future discrimination.
The current treatment of special needs voters violates the second principle of electoral democracy. The free-conscience principle dictates that voters be allowed to vote without influence or the threat of intimidation or coercion. While we do not assert that the ballots of special needs voters are being recorded against their wishes, the very fact that the system relies on and trusts a polling volunteer or friend of the voter to accurately and honestly mark the ballots and record the votes of assisted voters can spark fear, or at least doubt, in the minds of some in the community that the assisters will encourage or coerce the voter into voting a particular way or even go so far as to ignore the wishes of the voter and mark the ballot paper however they desire. These concerns were raised by a number of submissions to the JSCEM, including one from Barry Wakelin MP, Federal Member for Grey.[122] In response, the AEC responded with a one-sentence reply 'absolutely refut[ing] the implication … that polling staff who assist voters are encouraging voters to vote in a particular way'.[123] This may be correct, but it does not remove the need to examine how the law could be changed to enable new technologies to enable more electors to vote in secret. Both the JSCEM Report on the 2001 federal election and the JSCEM Report on the 1998 federal election examined this issue.[124] They demonstrate how not everyone in the community is fully satisfied that the assisted voting process is free from encouragement, coercion or corruption. The law should be adapted to minimise the number of assisted voters to those who are truly incapable of voting without assistance.
Without action on the part of the legislature and electoral administrators, legal action on behalf of disabled voters is a real possibility. This has occurred in a number of states in the US, a nation with 54 million disabled citizens, 24 million of whom are of voting age. The issue was first litigated in the District of Columbia under Title II of the Americans with Disabilities Act 1990, 42 USC (1990) ('ADA'). The case settled before trial, so no authoritative ruling on the issue was made. However, the settlement signified a victory for the plaintiffs, with the electoral commission agreeing to purchase and make available a number of accessible computerised voting machines at each polling station.[125]
In another case, a blind voter in Maryland filed a complaint after election officials refused to allow him the use of a specially designed Braille-type template in the 2002 congressional elections. The complaint, filed in conjunction with the American Civil Liberties Union on behalf of 20 000 blind or visually impaired people in Baltimore, Maryland, alleges violations of both the Constitution and the ADA.[126] Litigation and settlement negotiations are ongoing. Class action suits have also been filed in Florida, Pennsylvania and Texas, and in all cases bar Florida, the electoral officials and state legislatures have capitulated to voter demand and mandated the purchase of accessible voting equipment.[127]
This US litigation indicates how electoral authorities may have to provide disabled-accessible voting options or else face the cost and potential embarrassment of defending a discriminatory voting system in court. This is leading to the purchase and availability of accessible voting equipment in polling booths before the legislatively mandated deadline requiring any new voting equipment purchased by any US electoral authority be accessible to disabled voters.[128]
The 2001 JSCEM Report acknowledges that computerised voting has the capability to 'extend the secret ballot to those with visual impairment who otherwise require assisted voting to cast their vote'.[129] Even more encouragingly, the AEC recommended for the initiation of pilot computerised voting trials, a recommendation that, disappointingly, the JSCEM chose to ignore.[130] This acknowledgement that computerised voting is not only feasible and safe, but that it also could place disabled and illiterate voters on an equal level with other voters, potentially further opens the door for legal action. The fact that some disabled voters are denied their right to vote in secret during our compulsory elections, even though technology exists to allow those voters to vote in secret, may violate s 24 of the Disability Discrimination Act 1992 (Cth), which provides that it is unlawful for a person who provides services, or makes facilities available, to discriminate against another person on the ground of the other person's disability by refusing to provide the other person with those services.[131] It could be argued that the Commonwealth, in providing the service (ie, facilitating voting), in which exists a guarantee of the secret ballot, and by correspondingly denying special needs voters the full service to which other voters are getting (ie, the secret ballot), is in breach of the Act. It should also be noted that, while the Act does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the services, or making facilities available, would 'impose unjustifiable hardship' on the person who provides the goods or services or makes the facilities available, it has been argued that investing in and implementing computerised voting would not be a hardship on the Commonwealth.[132]
It must be noted, however, that litigation in the US only succeeded after a massive lobbying effort resulted in the passage of disabled-friendly legislation that requires states to purchase accessible voting equipment.[133]
While the issue of the accessibility of polling booths has long been settled in the US, only recently, as a result of a complaint in 1999 regarding the physical accessibility of voting booths, did the Human Rights and Equal Opportunity Commission ('HREOC') take up the cause and successfully lobby the federal government to review access to polling locations and to set benchmarks on the issue.[134] Unfortunately, accessibility to the ballot was not included in the mandate, but it would seem logical for HREOC to take the lead in campaigning for equal balloting rights. While it is encouraging that the AEC made recommendations to the JSCEM for the trialling and potential implementation of computerised voting, less encouraging is the JSCEM's rejection of that recommendation and even more discouraging is the demonstrated confusion exhibited by the JSCEM over the differences between computerised and Internet voting.[135]
Apart from the issue of ballot access for voters with disabilities, Australia should also follow the lead of the US, UK and several European and South American countries and initiate studies and trials regarding the possibility of implementing computerised voting to the wider public in general elections. The reason for this recommendation is simple: Australia should stay at the forefront of electoral governance. While the paper voting system has worked, it may not be the best system currently available (whether 'best' is judged by accuracy, cost, administrative ease, etc). While it is true that governments cannot leap into the technological unknown at the expense of the integrity and accuracy of the election process, and that the public must trust, understand and have the utmost confidence in the system under which they vote, part of that trust results from effective electoral administration and appropriate trials of new technology. Trust in a new voting system, and correspondingly the fulfilment of the third principle exposed in this article, the outcome principle, will only come after the public embraces the technology. But the public cannot fully embrace the technology until they fully understand it. Thus, governments and electoral authorities should ensure that the fourth principle of electoral democracy, the knowledge principle, is realised before introducing the technology in 'real' elections. The realisation of the principle could be accomplished in a number of ways, including by embarking on an education campaign whereby the public could test the technology in mock-elections.[136] Computerised voting can only be introduced after the fulfilment of the outcome and knowledge principles, which can only come after the system has proved itself successful in thorough trials in mock-elections and real time situations.
Computerised voting, as with any new system of voting, will also have to be anchored in a carefully drafted legal framework governing the voting process. For that reason, before implementing any new technology into the electoral system on the widespread voting public, electoral laws must be scrutinised and amended in order that the technology complements, rather than contradicts, electoral values. The current electoral laws are written to handle paper balloting only, and while various legal provisions could arguably be read to cover different forms of electronic voting, other sections would clearly need to be amended in order to cope with any technological adaptations. In order to implement any form of e-voting, the various Commonwealth and State electoral statutes would have to be scrutinised to ascertain which sections would need amending to accommodate the technology. For instance, the statutes refer to 'ballot-papers' and make numerous other references to traditional forms of voting, all of which would have to be amended.[137] In addition, provisions relating to a 'recount' and events which trigger such an action would also have to be amended and updated for the e-voting setting.
The law must also accommodate the possibility of technological failure. For instance, the US has recently enacted legislation providing that all electronic voting must enable voters to see their vote and have the ability to change it before it is registered, and that print-outs, or audit trails, of the vote be generated in certain circumstances. The electronic voting experiment conducted in the Australian Capital Territory in 2001 began the process of legislative adaptation to implement electronic voting, but the process must continue on a systematic basis to ensure the laws do not fail when tested during an election.[138]
In modern times, communication through the media is often the most effective way a candidate can present their policies and program to the public. The content and manner of delivery of political advertising during an election campaign leads to calls for reform after every election. The calls for reform are not just from the losing candidate and the media, but also from the JSCEM, which has often included in its reports references to the debate over the scope and method in which political advertising is regulated.[139] The reason for the calls of reform is not difficult to see, as the Australian political advertising regime has been described by noted political scientist Dean Jaensch as 'full of dissembling, half-truths, fudging, questionable statistics and plain, straight lies.'[140] Another scholar added that '[e]xaggeration, distortion and lying is part and parcel of an Australian election'.[141]
As more voters are increasingly loosening their ties to particular parties, political advertising becomes the most important means of attempting to sway undecided voters to support a particular party or candidate. In that regard, the regulation of political advertising becomes a major part in the overall system of electoral governance. It impacts on several of the principles of democracy, including the fourth principle, that the electorate possess at least a general knowledge about the voting process, and for what they are casting their vote for. It could be argued that deceptive and deceitful advertising could be regarded as not meeting the knowledge principle, since voters can easily be deceived by untruthful advertising and may alter their vote accordingly.
Parliament has largely left political communication unregulated, although the Commonwealth Electoral Act 1918 does make false and misleading statements 'in relation to the casting of [an elector's] vote' an offence.[142] In interpreting the section, the High Court held the section to refer 'to the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment'.[143] As a result of the ruling, Parliament passed s 329(2) which made it an offence to print, authorise or distribute an electoral advertisement containing an untrue or misleading statement. However, due to its alleged unenforceability, the provision was repealed shortly after its passage in 1983.[144]
Therefore, only statements relating to how to cast a vote, as opposed to statements intended to induce voters to vote for a particular candidate, are caught under the Act.[145] This reflects the difficulty in the law ever capturing the elusive concept of 'truth' in political advertising.[146] The Australian Democrats continue to sponsor bills that impose similar standards of honesty as those imposed on commercial advertising by s 52 of the Trade Practices Act 1974 (Cth), but have had no success at getting such bills enacted.[147]
Not only do the relatively few legislative provisions that govern political advertising reflect a laissez-faire, 'free speech' philosophy in Australia over advertising,[148] but it also calls into question the 'free and fair' standards of Australian elections. The fourth principle of electoral democracy, the knowledge principle, requires that voters are presented accurate information to assist them in choosing a candidate and casting their vote. By allowing deceptive and misleading advertisements to air, Australia is potentially violating that principle. Moreover, Australia may also be violating the first principle of electoral democracy, the participation principle. It can be argued that the party running the deceptive or misleading advertisement denies the other parties a fair and equal piece of the electoral process. While this argument can be countered by asserting that all parties engage in such deceptive and misleading comment, such a response is unsatisfactory. Not only is such a response unhealthy for the electoral system, but also it could only possibly work amongst the major parties. When one adds minor parties or independent candidates, all with much less of an advertising budget than the major parties, one clearly sees that swamping the electorate with deceptive or misleading advertisements could easily derail another's campaign.
The above does not mean to imply that no regulation of political advertising occurs. However, the only form of review of political advertising occurs through the self-regulation of broadcasters themselves via, for example, Commercial Television Australia ('CTVA'). CTVA reviews advertising and prevents certain material from being shown on television. For example, at the 2001 federal election, CTVA (then known as the Federation of Australian Commercial Television Stations ('FACTS')) determined that a Labor Party commercial stating it was 'the last chance' to save Telstra could not be shown as 'it was impossible to say whether or not it was in fact the last chance to save Telstra'. CTVA also banned a Liberal Party commercial that claimed that Labor leader Kim Beazley changed his mind on a number of issues.[149]
While this system may work for banning commercials asserting clearly outrageous or misleading claims, the system inevitably draws criticism from losing candidates who failed in their attempts to have commercials removed during the election (or whose advertisements were banned). In effect, the system is an unaccountable system of private regulation over a crucial form of electoral communication without the backing of any legal framework. This is unsatisfactory at a time when political advertising has become the parties' favourite and most successful way of communicating with the public.
There are no legislative constraints on either the volume of advertising or the amount each party can spend on advertising. As a result, the two major parties have increased their advertising budgets and now spend up to 70 per cent of their entire campaign budgets on television advertising alone.[150] In fact, during the 2001 election, the two major parties spent over $30 million on advertisements and, as the majority of funding each party receives is through the government,[151] the public (through the payment of taxes) has borne these costs and has indirectly aided the two major parties in effectively silencing the minor parties and independents. Such a laissez-faire, campaign finance regime potentially violates the first principle of electoral democracy, the participation principle, by effectively denying minor parties and independents an effective opportunity to participate in the battle to form a government. Such a regime also potentially violates the fourth principle of electoral democracy, the knowledge principle, in as much as allowing a party to blitz the electorate with advertisements (some of which may be deceptive and misleading) may distort their opinions and their sense of choice.
The cost of campaigning continues to be largely driven by the cost of advertising, particularly electronic broadcasting. Laws aimed at achieving transparency, equality and the minimisation of (the appearance of) corruption through donation disclosure, limits and state funding are having mixed success around the world and in some instances seem to be in constant disrepute. In this regard, Australia is no different as the challenge of 'money politics' is universal.[152] However, much could be done to tighten up the reins of electoral funding. Australia's laissez-faire approach to campaign finance and advertising laws is troubling for a number of reasons, not the least of which is that it inherently favours the two major parties.[153] For instance, the fact that Australia allows unlimited donations and no expenditure caps effectively means that the parties can blitz the electorate with advertising similar to what we are used to with corporate ads, such as Coles v Woolworths or Coke v Pepsi. This unfettered advertising frenzy crowds out minor party voices, which cannot attract as much money in donations and therefore cannot afford to spend large amounts on advertising. The system can thereby marginalise alternative voices.[154]
Political parties in Australia receive their funding from three sources: (1) internal funding (such as membership fees); (2) public funding; and (3) external funding (such as gifts and donations). The third source, external funding, is of particular concern to electoral and representative democracy, as large sums of money are donated by corporations to political parties every year.[155]
Regardless of whether such gifts and donations come without strings attached and political promises, the nature of such gifts call into question the political equality of Australians.[156] While such a system does not prevent any person from standing for election, it does create an unequal opportunity to have access to the government. Commonwealth regulations only require disclosure of most corporate and personal donations, and do contain a provision attempting to catch donations through 'front' organisations.[157] The system is ineffective at both stemming the tide of electoral donations (it is thought that a disclosure regime limits donations, as donors lose anonymity) and in providing electoral equality to all citizens.
There have been calls from some commentators for a strict limit or ceiling on political donations. For instance, Joo-Cheong Tham has proposed several methods to examine the problem of 'soft money' contributions.[158]
This proposal and others have been met with fierce resistance.[159]
Campaign finance reform is a major issue in the US and the UK and, while it is also a major issue in Australia, the nation has not followed their path and sought to improve the electoral funding regime. Reform of the Australian system is long overdue.
The history of the Australian electoral system is largely a story of experimentation and change. Australia pioneered numerous voting methods and led the world in achieving 'free and fair' elections. The law has had an important role to play in this. A flexible system of law has accommodated, rather than hindered, innovation and has also ensured public confidence in the process. This has enabled Australia to be a leader in electoral governance. Indeed, the Australian model stands as a guide now used by emerging democracies just starting to craft their democratic futures.[160]
It is not surprising that many would proclaim the virtues of the system of Australian electoral law. However, this article has shown that, upon deeper inspection, some of Australia's long-held traditions and practices, such as the secret ballot and compulsory voting, are not as consistent with basic electoral principles as they should be. For example, voting systems need to be improved to allow disabled and illiterate voters the right to vote by secret ballot. Likewise, the political advertising and funding regimes need urgent reform.
While experimentation has been a feature of the past, the modern era has seen less vitality. While other nations are moving forward with initiatives such as major electoral reviews, computerisation, experimentation with new registration methods, tough campaign finance laws and clear laws regulating political advertising, Australia is resting on its laurels. This is not to suggest that a revolution is needed. Indeed, the system of electoral law retains the core strengths set out in this article. However, it does mean that the nation should now reassess its electoral regime. Australia has a long tradition of innovation in electoral law, a tradition that is vital to the ongoing achievement of 'free and fair' elections.
[*] 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.
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