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?
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