5

Question 1

What is the key part of s 7 and 24 of the constitution in regards to representation

Answer 1

the senate and HoR will be ‘directly chosen by the people’

Question 2

What does ‘directly’ mean

Answer 2

Chosen by way of direct election, not an electoral college, as in the United States.

Question 3

What does ‘chosen’ imply

Answer 3

A free and genuine choice between alternatives must be permitted.

Question 4

What has been derived by implication from ‘chosen’

Answer 4

Freedom of political
communication, because this is necessary in order to make a genuine ‘choice’, which must be capable of being free and informed.

Question 5

What has the HCA implied from ‘the people’

Answer 5

Implications concerning the extent of the franchise. If certain sectors of ‘the people’ are denied the right to vote, this might prevent a House from being ‘directly chosen by the people’.

Question 6

What does s 30 of the Constitution provide

Answer 6

Prohibition on plural voting in Commonwealth elections, but minimum State representation permits disproportion in electorate sizes

Question 7

What is the facts of McKinlay

Answer 7

1974 federal election was challenged on the basis that there were disparities in population between electorates

Question 8

What did the majority say in McKinlay

Answer 8

Barwick CJ: reject US jurisprudence, look to text of Constitution and trust Parliament

McTiernan and Jacobs JJ: ‘directly chosen by the people’ could be given such a precise content as equality of electoral divisions.
Inequality of distribution of numbers and severely limited franchise might NOT be regarded as choice by the people

Question 9

What does Stephen J consider the principle of representative democracy indeed require (3)

Answer 9

1) Enfranchisement of electors
2) Existence of an electoral system capable of giving effect to selection of representatives
3) Bestowal of legislative functions upon those representatives
Quality and character of these ingredients was left to the Parliament to determine

Question 10

What did Mason J note in McKinlay re: disproportion

Answer 10

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’ but this is not such a case

Question 11

What was Murphy’s dissent in McKinlay

Answer 11

Principles of representative democracy operated over time to change the way the Constitution is interpreted

Question 12

What are the limitations on the ‘one vote one value’ in the CEA (3)

Answer 12

• Electorates cannot cross borders
• Minimum number of seats in a State
• Small lee-way to accomodate geographical size and communities of interest

Question 13

What is the maximum lee-way in NSW re disparaity

Answer 13

10%

Question 14

Did a referendum protecting one vote one value succeed?

Answer 14

No, two in 1974 and 1988 failed

Question 15

What are the facts of McGinty

Answer 15

McGinty challenged malapportionment in WA

on the basis of the implication of representative government drawn from ss 7 and 24 of the Constitution.

Question 16

What did the Court find in McGinty

Answer 16

Provisions in the Commonwealth Constitution concerning elections apply only to the HoR or Senate, not the State Parliaments

Question 17

What did Dawson J note in McGinty

Answer 17

Hundreds of different electoral systems, as long as they provide for direct choice by people, then Parliament can choose whichever system it wants

Question 18

What was a reason that ‘one vote one value’ was not part of the entrenched ‘representative government’ principle in the WA Constitution

Answer 18

The vast geographical size and sparse population in the rural areas of WA

Question 19

Facts of Mulholland

Answer 19

The DLP was asked to provide a list of its members, to maintain registration, but refused. It took legal action to prevent its de registration, arguing that ‘directly chosen by the people’ imports a notion of fairness and a level playing field so that electoral laws cannot discriminate against parties with small membership.

Question 20

What did Gleeson CJ stress about flexibility in Mulholand

Answer 20

The Constitution is meant to be difficult to amend.
Leaving it to Parliament, subject to certain fundamental requirements, to alter the electoral system in response to changing community standards of democracy is a democratic solution to the problem of reconciling the need for basic values with the requirement of flexibility

Question 21

What did McHugh J say in Mulholland

Answer 21

The “500 rule” therefore protects the electoral process by requiring that, before a party name can be placed on the ballot-paper, its sponsors demonstrate a minimum
verifiable level of public support

Question 22

What are the facts of McCloy

Answer 22

High Court rejected the argument that the making of large political donations is protected by the Constitution because it is a means of building political power and participating in the political process.

Question 23

What did the majority say in McCloy

Answer 23

Guaranteeing the ability of a few to make large political donations in order to secure access to those in power would seem to be antithetical to the great underlying principle’ of representative government

The risk to equal participation posed by the uncontrolled use of wealth may warrant legislative action to ensure, or even enhance, the practical enjoyment of popular sovereignty.’

Question 24

When did voting become compulsory at the federal level?

Answer 24

1924

Question 25

Which case upheld the validity of compulsory voting? + ratio

Answer 25

Judd v McKeon

‘chosen’, saying it was a choice between two or more things regardless of whether you want any of them

Question 26

What are the facts of Langer

Answer 26

To prevent too many informal votes, the law provided that if a preference was repeated, then the vote was able to be validly distributed up until that point, but no preferences were allocated after the repeated number.

Question 27

What did Brennan CJ find in Langer

Answer 27

Parliament is empowered to prescribe a method of voting that requires a voter to give full preferences, even though the voter must choose by allocating preferences among candidates for whom the
voter does not wish to vote.

Question 28

What was Dawson J’s dissent

Answer 28

The law was invalid because it had the intended effect of keeping from voters an alternative method of casting a formal vote which they are entitled to choose under the Act.

Question 29

Facts of Day v AEO

Answer 29

Senator Day argued that instructions on the ballot telling people to vote for 6 groups above the line were misleading because they didn’t include the savings provisions validated votes for just one group.

Question 30

What did the majority say in Day

Answer 30

Instructions on the ballot were accurate and could never be expected to include all savings
provisions

A vote above the line ‘is as much a direct vote for
individual candidates as a vote below the line’