Monday, 1 July 2013

Democracy and Australian Constitution

Free Speech and Democracy
Without the ability to access ideas and to communicate about them freely, people are not able to fully participate in a democracy.

Deane and Toohey JJ in Nationwide News v Wills (1992), describing the importance of political communication for functioning of democracy:

       “The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. … The ability to cast a fully informed vote in an election of members of the Parliament depends upon the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation … the doctrine of representative government presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.”

Freedom of political communication
In Australian Capital Televisions v Commonwealth (1992), the High Court held that a legislative ban on political advertising on television and radio infringed the implied freedom, despite the government’s claim that the ban was designed to enhance communication and eliminate corruption. (Although, this was highly controversial when it was first propounded in Nationwide News v Wills (1992))

Protecting Australia’s Democracy
       1) Electoral Governance: Several bodies are responsible for ensuring the effectiveness and integrity of Australian Democracy. They include:
·     The Australian Electoral Commission
·     The Joint Standing Committee on Electoral Matters
·     The Court of Disputed Returns
2) Support for parties and candidates: greater political equality is one justification. The other is that parties and candidates would be less dependent on political donations (large donors).
3) Role of the media

Constitutionality and Limiting franchise
Three issues:
       1) What power is there for the government to pass a law about franchise?
       2) What is the extent of the constitutionally protected federal franchise?
3) Is removing the existing right of ex-pats who declare an intention to return constitutionally justified?
Sections 7 and 24, ‘directly chosen by the people’
The notion of representative government is implicit in text and structure of the Constitution. A discussion of the cases McKinlay and Roach are the precedent for:
       a) an implied universal franchise, understood as a limitation on legislative power.

Furthermore, a discussion about the controversy over Court acting as more than backstop in regulation of statutory political rights versus fundamental nature of franchise is helpful.

McKinlay’s case (1975)
Issues:     Should everyone’s vote be equally weighted?
       What interests are represented?
The case argued for ‘one vote, one value’

Roach’s case
Issue: Should all prisoners be able to vote?
Held: Yes. 

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