The Right to Vote (VCE SSCE Legal Studies): Revision Notes
The Right to Vote
The right to vote, also known as suffrage, represents one of Australia's most fundamental human rights. This right enables citizens to choose their leaders and representatives through free elections, forming the cornerstone of democratic governance. While many democracies protect this right, numerous countries worldwide still face restrictions, corruption, or inadequate electoral systems that undermine fair voting practices.
In Australia, the right to vote receives protection primarily through statute law, including the Victorian Human Rights Charter. Although the Australian Constitution does not expressly mention this right, it exists and operates throughout all Australian states and territories.
Understanding how Australian law protects this right, and considering potential reforms to strengthen this protection, is essential for grasping how human rights function in Australia's legal system.
The nature and development of the right to vote
Australia played a founding role in supporting the Universal Declaration of Human Rights (UDHR) when it was adopted in 1948. By supporting this declaration, Australia committed itself to respecting and promoting the basic human rights and freedoms that the UDHR outlines. This international commitment established a foundation for how voting rights would develop in Australian law.
The UDHR acknowledges the right to vote by recognising two key principles:
- All people possess the right to participate in their country's government, either directly or through freely chosen representatives
- The will and wishes of the people must form the basis of governmental authority, with citizens having opportunities to express these wishes through voting
Building on the UDHR's foundation, the international community later codified these principles in two significant treaties. The International Covenant on the Elimination of All Forms of Racial Discrimination (1965) and the International Covenant on Civil and Political Rights (ICCPR) (1966) both set out the general right of all people to vote. Australia adopted both international treaties, thereby committing to uphold the right to vote as an international obligation.
This commitment means Australia has legal responsibilities under international law to protect and promote voting rights for its citizens.
The laws that apply to the right to vote
Australian law protects the right to vote through three main sources: statute law (including the Victorian Human Rights Charter), the Australian Constitution, and common law principles developed by the High Court. Each source plays a distinct but complementary role in safeguarding this fundamental right.
Statute law protection
Unlike some nations, Australia does not have a single national charter or bill of rights that comprehensively recognises and protects all basic human rights for Australians. Instead, the Commonwealth, state and territory parliaments have passed numerous Acts of Parliament (legislation) that recognise and protect specific human rights, including the right to vote.
The Commonwealth Electoral Act 1918 (Cth) serves as the principal legislation governing how federal elections are conducted in Australia. This Act recognises the right to vote in Commonwealth (federal) elections for all Australian citizens aged 18 years and over, subject to certain disqualifications. Significantly, voting in federal elections has been compulsory since 1925, reflecting the view that voting represents a civic duty of Australian citizenship, not merely a right.
However, the Commonwealth Electoral Act does permit the disqualification of some citizens from voting based on what the law considers 'objective and reasonable' criteria. These disqualifications include:
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People of unsound mind: Individuals who are incapable of understanding the nature and significance of voting due to mental incapacity cannot vote. This disqualification aims to ensure that voters can make informed decisions.
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Serious criminal offenders: People convicted of treason (such as imprisoning or causing the death of the Sovereign, their heir, the Queen Consort, the Governor-General or the Prime Minister, or intentionally assisting an enemy at war with the Commonwealth) or treachery (using force or violence to overthrow the government) are disqualified. These offences represent the most serious crimes against the state.
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Prisoners serving longer sentences: A person serving a prison sentence of three years or longer cannot vote in federal elections. This restriction was established through legislation passed in 2004 and upheld by the High Court in the landmark Roach case (discussed later).
Each state and territory parliament has also enacted its own legislation setting out voting rights in state and territory elections. In Victoria, Section 18 of the Victorian Human Rights Charter provides explicit protection for the right to vote. This section guarantees Victorians the right to take part in public life, including the right to vote in state and local council elections.
Even under the Charter, a person can be disqualified from voting if the grounds for disqualification are reasonable, necessary, justified and proportionate to achieving a legitimate aim.
The Australian Constitution
The right to vote is not one of the five express rights explicitly stated in the Australian Constitution. However, the High Court of Australia has interpreted sections 7 and 24 of the Constitution as protecting a 'qualified' right to vote—meaning the right to vote exists for eligible people, but can be subject to reasonable restrictions.
Sections 7 and 24 require the houses of the Commonwealth Parliament (the Senate and the House of Representatives) to be directly chosen by the people. This constitutional requirement establishes the principle of representative government, which means parliament is chosen by citizens to make laws on their behalf. The Constitution also enshrines the principle of one person, one vote, ensuring that each elector may vote only once in an election, thereby maintaining electoral equality.
The High Court has interpreted sections 7 and 24 on several occasions when resolving constitutional disputes. In the significant case Roach v Electoral Commissioner (2007), the High Court ruled that the principle of representative government, as established by sections 7 and 24, protects the right of Australian people to choose members of the Commonwealth Parliament.
Crucially, the Court determined that parliament can only restrict this right if such restrictions are reasonable and necessary to preserve the principle of representative government itself.
This means parliament cannot unnecessarily or unreasonably deny people the right to vote without violating the Constitution.
Common law protection
While statute law provides the primary protection for voting rights in Australia, the High Court has established important legal principles through common law when resolving constitutional disputes. These principles further protect and clarify the scope of the right to vote.
When interpreting sections 7 and 24 of the Constitution, the High Court has clarified their meaning and restricted the Commonwealth Parliament's ability to unreasonably deny Australian citizens the right to vote. In the 2010 case Rowe v Electoral Commissioner, the High Court ruled that the Commonwealth Parliament had unnecessarily denied people access to voting by passing legislation that reduced the time available for people to enrol (or register) to vote after a federal election had been called.
Since people who have not enrolled to vote before a federal election are not eligible to vote, this restriction effectively denied them their voting rights. The Court found this restriction unconstitutional, demonstrating how common law principles can protect voting rights by limiting parliament's power to restrict access to the electoral roll.
Exam tip: When analysing how the right to vote is protected, structure your response around the three sources of protection (statute, Constitution, common law). For each source, explain not just what the law says, but how it operates to protect the right and any limitations it imposes. This demonstrates both knowledge and analytical ability.
Possible reforms and conflicting attitudes
The right to vote is an established and widely accepted human right in Australia. However, despite the protections offered by Australian law, various individuals and organisations believe this right could be strengthened through implementing specific reforms. Two main reform proposals have gained attention: lowering the voting age and allowing all prisoners to vote.
Lowering the voting age
Currently, only adults aged 18 years and over may vote in federal, state and territory elections in Australia. However, growing pressure exists to lower this minimum voting age. In 2023, independent member of parliament Monique Ryan MP and the Australian Greens political party publicly confirmed their support for this reform. Ryan, elected to Federal Parliament in 2022, reported that during her election campaign, many young people who held strong views on issues directly affecting them—such as climate change—expressed their desire to vote despite being under 18.
Advocates have proposed several options for implementing this reform:
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Optional voting for 16 and 17-year-olds: This approach would allow, but not require, younger citizens to vote, recognising their capacity while not imposing the same obligations as for adults.
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Compulsory voting without penalties: This option would make voting compulsory for 16 and 17-year-olds but would not impose fines on those who choose not to vote, providing a middle ground between voluntary and fully compulsory voting.
Arguments supporting lowering the voting age are substantial and evidence-based. Legal and human rights organisations, such as the Human Rights Law Centre, support lowering the voting age to 16 years. They argue that young people are most likely to experience the long-term effects of today's political decisions and therefore deserve the opportunity to express their views and choose who governs the country.
Many young people demonstrate education and interest in a wide range of political issues that directly impact them and the broader community, including:
- Housing affordability and homelessness
- Mental health care
- Human rights of First Nations people, people with disability, and the LGBTQIA+ community
Lowering the voting age would encourage young people to become involved in the political process, develop interest in social and legal issues, and build confidence and trust in Australia's democratic system of government. This engagement could foster lifelong civic participation and strengthen democratic institutions.
Furthermore, denying young people the right to vote may breach their human rights under international law. In November 2022, New Zealand's highest court ruled that the minimum voting age of 18 years discriminated against young people and breached their human rights. Following this decision, the then New Zealand Prime Minister, Jacinda Ardern, announced that the government would introduce a bill to lower the voting age to 16 years, although parliamentary passage was not guaranteed.
Arguments opposing lowering the voting age often centre on concerns about maturity and experience. Opponents frequently claim that young people lack the life experience, knowledge or maturity to cast an informed vote. However, research indicates that young people are often well educated and possess the maturity to vote.
Moreover, the same criticisms about lack of knowledge or informed decision-making could be applied to many adult voters. Many young people have lived experience with, and informed views on, a range of social and legal issues. For example, they may have experienced discrimination in the workplace or when seeking accommodation based on their race, disability, sexuality or gender identity.
It is worth noting that in 1973, Australia lowered the minimum voting age from 21 to 18 years, demonstrating that the voting age is not fixed and can change to reflect evolving views about civic participation and maturity.
Allowing all prisoners to vote
As examined earlier, the Commonwealth Electoral Act currently bans prisoners serving a sentence of three years or longer from voting in federal elections. Several legal and human rights organisations, including the Australian Human Rights Commission, believe this restriction is not reasonable and should be abolished.
Arguments supporting prisoner voting rights rest on several foundations. First, denying prisoners the right to vote arguably breaches the ICCPR, one of the seven main international treaties adopted by the Australian Government. This treaty requires a country's prison system to treat prisoners in ways that assist their social rehabilitation—helping them change their behaviour and gain skills to reintegrate into the community. Allowing prisoners to vote could support this rehabilitative goal by maintaining their connection to civic life and society.
Second, denying prisoners the right to vote disproportionately affects First Nations people, who account for 32 per cent of the adult prison population in Australia despite representing only 3.8 per cent of the total Australian population. This stark overrepresentation means that laws restricting prisoner voting rights have a much greater impact on First Nations communities than on the general population, raising questions about racial justice and equality.
Arguments opposing prisoner voting rights typically claim that people who commit serious crimes should be denied the right to vote as part of their 'punishment'. However, this argument faces a significant problem: removing the right to vote as punishment is not recognised as one of the lawful purposes of a sanction (penalty) in any Australian jurisdiction.
Courts impose sanctions for purposes such as punishment, deterrence, rehabilitation, denunciation and protection of the community—not to remove civic rights. Therefore, this justification lacks legal foundation.
Challenges to implementing reforms
Both proposed reforms face practical challenges to implementation. Strengthening the right to vote by lowering the voting age or allowing all prisoners to vote requires statutory change—parliament would need to pass an amending Act of Parliament to change existing legislation. At the federal level, this means the reform would need support from a majority of members in both houses of parliament (the House of Representatives and the Senate).
Any reform would also need to reflect the views of the majority of people in the community. Members of parliament are generally reluctant to support laws that do not reflect community values, fearing they will lose electoral support. Controversial reforms, such as those proposed for voting rights, may face opposition from vocal minorities who resist change, and this can influence parliamentary decision-making.
At the federal level, the government rarely holds a majority in the upper house of parliament (the Senate). This means any proposal to reform the right to vote would need support from the opposition, minor parties or independent members of parliament—which could be difficult to secure, especially for contentious reforms.
Exam tip: When discussing possible reforms, always present both supporting and opposing arguments. Use the structure: "Those who support [reform] argue that... because..." and "Those who oppose [reform] argue that... because...". Then evaluate which arguments are stronger based on evidence, legal principles, and human rights considerations. This analytical approach demonstrates higher-order thinking skills that examiners reward.
Case study: Roach v Electoral Commissioner (2007)
The Roach case represents a landmark decision in Australian constitutional law regarding the right to vote. In 2007, the High Court of Australia examined whether legislation banning prisoners from voting breached the Australian Constitution, providing crucial clarification about the scope and limits of voting rights in Australia.
Background to the case
In 2004, the Commonwealth Parliament passed legislation to ban prisoners serving sentences longer than three years from voting in federal elections. Previously, all prisoners could vote. Then, in 2006, parliament passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) to change the Commonwealth Electoral Act 1918 (Cth) so as to ban all prisoners from voting in federal elections, regardless of sentence length.
In June 2006, more than 20,200 prisoners were incarcerated in Australia, with 24 per cent being First Nations people. One of these prisoners was Vickie Lee Roach, a First Nations Yuin woman serving a six-year term of imprisonment for five offences. Roach believed that both the 2004 and 2006 Acts banning prisoners from voting were unfair and breached the principle of representative government established by the Australian Constitution.
The legal challenge
With assistance from the Australian Human Rights Commission, which provided pro bono (free) legal representation, Roach challenged the constitutional validity (lawfulness) of both Acts in the High Court. She argued that the Acts banning prisoners from voting breached sections 7 and 24 of the Australian Constitution, which require members of both houses of the Commonwealth Parliament to be 'directly chosen by the people'.
The High Court's decision
In 2007, four of the six High Court justices ruled that the 2006 Act (which banned all prisoners from voting) was inconsistent with the principle of representative government. They declared the Act unconstitutional and invalid.
The High Court's Key Principles:
The Court established several important principles in its decision:
1. Protection of the right to choose representatives The principle of representative government, as established by sections 7 and 24, protects the right of the people to choose members of the Commonwealth Parliament and gives people a right to vote for those who govern the country.
2. Restrictions must be reasonable and necessary Parliament can only restrict the right to vote if it is reasonable and necessary to preserve representative government. For example, a 'reasonable' or 'necessary' reason might include banning people of 'unsound mind' from voting, as they cannot meaningfully participate in the electoral process.
3. Proportionality of restrictions It is reasonable for parliament to deny voting rights to prisoners sentenced for serious criminal offences (serving sentences of more than three years), but it is not reasonable to deny this right to prisoners sentenced for less serious criminal offences (serving sentences of three years or less).
Outcome: The High Court upheld the 2004 legislation (which bans prisoners serving sentences of three years or more from voting) but declared invalid the 2006 Act (which banned all prisoners from voting).
Significance and impact
The Roach case established important constitutional limitations on parliament's power to restrict voting rights. It confirmed that while parliament can impose some restrictions on voting, these restrictions must be reasonable and necessary to maintain representative government. The decision protects the voting rights of prisoners serving shorter sentences, recognising that blanket bans go too far in restricting this fundamental right.
Interestingly, while the Roach case helped protect the right to vote by ensuring that prisoners serving sentences of three years or less could vote, it did not give Roach herself the right to vote because she was serving a six-year term of imprisonment. Nevertheless, her legal challenge established principles that protect the voting rights of thousands of other prisoners and set important limits on parliamentary power.
The case demonstrates how individuals can influence the protection of human rights through strategic litigation. Even though Roach did not personally benefit from the decision, her willingness to challenge the law—with support from human rights organisations—strengthened voting rights protections for all Australians and established constitutional principles that continue to guide the interpretation of sections 7 and 24.
Exam tip: When analysing the Roach case (or any case study), structure your response around: (1) Background and facts, (2) Legal issue and arguments, (3) Court's decision and reasoning, (4) Significance and impact. This structure demonstrates thorough understanding and allows you to explore multiple dimensions of the case. Always connect the case back to broader themes about human rights protection and the role of courts in a democratic system.
Remember!
Key Points to Remember:
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The right to vote (suffrage) is a fundamental human right in Australia that enables citizens to choose their representatives in free elections, forming the cornerstone of democratic governance.
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Protection comes from three sources: statute law (Commonwealth Electoral Act 1918, Victorian Human Rights Charter Section 18), the Australian Constitution (sections 7 and 24), and common law principles developed by the High Court.
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The principle of representative government, established by sections 7 and 24 of the Constitution, means parliament must be directly chosen by the people. The High Court has interpreted this as protecting a qualified right to vote.
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Some disqualifications apply: People of unsound mind, those convicted of treason or treachery, and prisoners serving sentences of three years or longer cannot vote in federal elections. These restrictions must be reasonable and necessary.
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Voting has been compulsory in federal elections since 1925, reflecting the view that voting is a civic duty, not merely a right.
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Two main reform proposals could strengthen the right to vote: lowering the voting age to 16 and allowing all prisoners to vote. Both face challenges in gaining parliamentary and community support.
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Roach v Electoral Commissioner (2007) established that parliament can only restrict voting rights if restrictions are reasonable and necessary to preserve representative government. The case struck down legislation banning all prisoners from voting while upholding restrictions on prisoners serving longer sentences.
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International obligations under the UDHR and ICCPR commit Australia to protecting and promoting the right to vote, though domestic law does not always fully align with these commitments.
Key terms
- Suffrage: The right to vote in elections
- Representative government: Parliament is chosen by the people to make laws on their behalf
- One person, one vote: Each elector may vote only once in an election
- Disqualification: Circumstances where voting rights can be removed based on reasonable criteria
- Sanction: A penalty imposed by a court on a person guilty of a criminal offence
- Pro bono: Free legal services provided for the public good
- UDHR: Universal Declaration of Human Rights (1948)
- ICCPR: International Covenant on Civil and Political Rights (1966)
Exam guidance
When answering questions about the right to vote:
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For "explain" questions: Describe the principle or concept, provide relevant legal sources (statute, Constitution, or common law), and give examples or applications.
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For "analyse" questions: Examine how effectively the law protects the right to vote, identify strengths and weaknesses in current protections, and consider different perspectives.
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For "evaluate" or "assess" questions: Make a judgement about the adequacy of protections or merit of reforms, support your judgement with evidence and reasoning, consider counterarguments, and reach a balanced conclusion.
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For "discuss" questions about reforms: Present arguments both for and against the proposed reform, evaluate the strength of each side, consider practical challenges to implementation, and (if asked) provide your own reasoned opinion.
Always support your answers with specific examples, such as legislation (Commonwealth Electoral Act), constitutional provisions (sections 7 and 24), or cases (Roach, Rowe) to demonstrate detailed knowledge and application skills.