6

Question 1

What does s 8 of the Constitution provide

Answer 1

Franchise for the Senate is the same as for the House of Representatives.

Question 2

What grants power to the parliament for franchise

Answer 2

s 51(xxxvi) in combination with s8 and s30

Question 3

Which two States allowed for women to vote at time of federation

Answer 3

South Australia and Western Australia

Question 4

What does s 41 of the Constitution provide

Answer 4

Right to vote at elections at State will be allowed to vote at Commonwealth

Question 5

Which two States excluded Aboriginals from voting at the time of federation

Answer 5

Queensland and WA

Question 6

What occurred in 1949 re: Aboriginal voting rights

Answer 6

Commonwealth legislation essentially s 41 for Aboriginals

Question 7

When were Aboriginal people given the right to vote in Commonwealth elections and when did it become compulsory for them to enrol

Answer 7

1962 and 1983

Question 8

Which State was last to allowed Aboriginals the right to vote

Answer 8

1965

Question 9

What did the Court find in King v jones

Answer 9

Section 41 applies only to ‘adult persons which for constitutional purposes, was 21 and over

Question 10

What did the High Court find in R v Pearson

Answer 10

s 41 had ceased to operate. They confined its operation to those who had acquired their right to vote before the enactment of the uniform franchise in 1902.

Question 11

What were Brennan, Deane and Dawson concerned about in Pearson

Answer 11

The expansion by a State of its franchise could affect the Commonwealth franchise, undermining the uniform franchise. They noted that a State could otherwise expand the franchise to include aliens, prohibited immigrants or convicts under sentence for serious offences.

Question 12

What are the facts of Roach

Answer 12

In 2006 it was wound back again so that all prisoners serving a sentence of any length were disqualified from voting.

Question 13

What did the court find in Roach?

Answer 13

‘Evolutionary’ theory of interpretation. Representative government evolves towards the ‘end’ of maximisation of participation in elections. Every time participation is widened, it becomes the new base for further revolution. It is a one-way street – the Parliament cannot go backwards and reduce representation

Question 14

What did Gleeson CJ say about exclusion in Roach

Answer 14

Need for a ‘substantial reason’. It must not be ‘arbitrary’. There needs to be a rational connection between the definition of the excluded group and the identification of community membership or the capacity to exercise free choice. Prisoners may be excluded because their conduct has manifested ‘such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right’.

Question 15

What was the test by Gummow, Kirby and Crennan in Roach for exclusion?

Answer 15

Disqualification must be ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government

Question 16

What are the facts of Rowe

Answer 16

The law was changed upon the recommendation of a parliamentary Committee:
(a) to reduce the possibility of election fraud; and
(b) to encourage people to enrol when they are supposed to do so, rather than leaving it till the last minute.
The new date for enrolment was the date of the issue of the writs and for change of enrolment was 3 days later.

Question 17

What did French CJ find in Rowe

Answer 17

Constitutional concept of “chosen by the people”’ had evolved and that it ‘cannot now be diminished

Was disproportionate to the benefits of a smoother and more efficient electoral system.

Question 18

Facts of Murphy

Answer 18

Argued that people should be able to enrol up to and including polling day. It was an extension of Rowe. The case did not involve disenfranchisement – but rather, procedural limitations on the opportunity to enrol.

Question 19

What did the court find in Murphy

Answer 19

Denied that there is a constitutional imperative

that participation in elections be maximised.

Question 20

What did Keane J reinforce in Murphy

Answer 20

Brennan CJ comment in McGinty
“it is not up to the Court to fill the meaning of
‘representative democracy’ with content derived from outside the Constitution.”

Question 21

Facts of Day v AEO

Answer 21

Under the new Senate voting laws, electors who vote for minor parties will find themselves disenfranchised because their votes are likely to exhaust and therefore not be used to elect a Senator.

Also argued that the ‘Droop quota’ used to elect Senators was invalid

Question 22

Ratio of Day v AEO

Answer 22

It was a matter of choice for voters whether or not they voted for all candidates or some of them