Allow us to begin this piece with a confession: up until law school, this writer – like many other Australians, probably – had a greater familiarity with the US Constitution, when compared with the Australian Constitution. It is a rather sobering fact that arguably the most important legal document in the country, is generally mysterious to most of the populous. However, in saying that, most of us will also be acutely aware, that unlike our common law counterparts in the US and the UK, it is compulsory for all Australian citizens to vote in elections here. But where does this right stem from? Is it constitutionally protected?
Well, for the curious, and not so curious, please read on because voting rights aren’t what they seem.
There is no express right to vote
It would be fair to say, that the majority of people in Australia assume that all citizens have a right to vote in elections. Even the introductory paragraph to this piece implied as such – but we’d be wrong (including FindLaw). Most readers would be surprised to find out, that the Constitution only grants Australians an implied right, rather than an express right to vote.
Although ss 7 and 24 of the Constitution requires that members of the Senate and the House of Representatives are chosen by the people, the provisions however, do not explicitly make reference to who can actually vote in elections. Therefore it is interpreted as an implied right.
Another important provision can be found in s 41 enshrining this approach by the courts, which states:
“No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.”
The general interpretation of this provision used to be that anyone who has the right to vote in a State election, by extension, also has a right to vote in the Federal election. However, the s 41 provision was tested in R v Pearson; Ex parte Sipka where the High Court ruled that s 41, preserves the right to vote, rather than grants a right.
The implied right to vote
Establishing that there is no express right to vote in Australia, but rather there is an existence of an implied right: how did the law reach such a point? Well, numerous cases did indicate that there was a minimum requirement to franchise, however, it was not until Roach v Electoral Commission in 2007 where the implied right to vote was confirmed.
The case in Roach was the result of an action by a prisoner, Vickie Roach, who challenged the amendments to the Commonwealth Electoral Act which removed voting rights from prisoners. The resulting judgment in Roach was a confirmation of previous case law in which the implied freedom of political communication was considered as ‘an indispensible incident’ to the system of representative government, and the principle was therefore also applied towards voting rights – albeit with some exceptions.
You do not have to make a choice when voting
One final interesting aspect of Australia’s voting laws, is that although s 245 of the Electoral Act requires every person whose name appears on the electoral roll to vote in an election, the provision does not extend to forcing a person to make a choice when voting. The section instead merely requires, that a person attends a polling booth, and deposits their voting paper - rather than making a further requirement to mark the ballot paper.