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| 1 | The decision of the high Court in Australian Capital Television Pty Ltd v Commonwealth (ACTV) stands alongside more famous cases such as Mabo v Queensland (No 2)9 (dealing with the native title rights of Australia’s Indigenous peoples) as the high water mark of the activism of the high Court under Chief Justice Mason. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 2 | CONSTITUTIONAL LIMITATIONS AND THE ROLE OF THE COURTS The high Court and judicial review of electoral legislation The Australian Constitution establishes a federal system of government comprising parliamentary government, democratic elections, responsible government, an independent high Court, the rule of law and the separation of powers. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 3 | But judges in Australia’s highest courts, most notably Justice Michael Kirby of the high Court, have increasingly recognized that the development of the Australian common law, including statutory and constitutional interpretation, ought be in accordance with fundamental norms reflected in international human rights principles. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 4 | In contrast to the United States Supreme Court, for example, the high Court of Australia plays an infrequent (and even then often minor) role in the development of electoral law. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 5 | The high Court struck down the legislation by implyinga constitutional freedom of communication in relation to governmental and political matters. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 6 | ACTVsuggested that the high Court might take a more active role in shaping electoral law in Australia, perhaps even a role similar to that played by the United States Supreme Court. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 7 | In reality, they are not free-standing entities, but merely manifestations of each State Supreme Court, and, at federal level, the high Court. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 8 | Yet the electoral jurisdiction of the high Court was not finally confirmed until 1999. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 9 | In Sue v Hill, the high Court held that a petition to unseat a successful candidate on the basis of a lack of qualifications was an exercise in judicial power. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 10 | But even in malfeasance cases, a hardline approach against the respondent on the question of remedies is in tension with the general law rule in Briginshaw v Briginshaw.26 Briginshaw is a well-known high Court case that provides that the standard of proof in civil proceedings is effectively increased where the allegations are serious or would have grave consequences. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 11 | The more common view, found in Queensland cases and high Court dicta, is that wherever electoral legislation is so detailed and comprehensive that it forms a code, the common law is ousted. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 12 | Unlike Canada, with its Charter of Rights and Freedoms, there is no constitutional guarantee on which to support prisoner voting.40 It remains to be argued whether sections 7 and 24 of the Constitution, which require Federal Parliament to be “directly chosen by the people,” could be interpreted by a rights-oriented high Court to deny Parliament the power to disenfranchise competent adult citizens. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 13 | Proponents of strict “one-vote, one-value” have twice unsuccessfully asked the high Court to entrench that principle through constitutional implication. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 14 | Under s 51(xxvi) of the Constitution, the Australian Parliament has the power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws.” This power might be used to create Indigenous quotas (unless this is seen by the high Court as inconsistent with the direction in ss 7 and 24 of the Constitution that Parliament be “directly chosen by the people”). This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 15 | But in practice, such international norms may have limited effect on Australian law, as they tend to be stated at a high level of generalization, and Australian electoral practice tends to easily meet them. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 16 | Without a Bill of Rights or even the entrenchment of basic democratic principles such as the right to vote, the Australian high Court has played only a minor role in the development of this field of law. This makes 2003 a good time to reflect and take stock of Australian electoral law. | Australian Electoral Law |
| 17 | 29 In rule 56 (orders for production of documents), after paragraph (1) insert— “(1A) An order— (a) for the opening of the sealed packet containing a completed ballot paper refusal list, or (b) for the inspection or production of that list, may be made by the high Court or the county court if satisfied by evidence on oath that the order is required for the purpose of an election petition relating to an election in England and Wales or Scotland.” 30 After rule 56 insert— “Inspection of ballot paper refusal list: Great Britain 56A (1) Regulations may make provision about the circumstances in which a registration officer may open the sealed packet containing a completed ballot paper refusal list and inspect the list. 37) Voting system for elections for certain offices 13 Simple majority system to be used in elections for certain offices PART 2 OVERSEAS ELECTORS AND EU CITIZENS Overseas electors 14 Extension of franchise for parliamentary elections: British citizens overseas Voting and candidacy rights of EU citizens 15 Voting and candidacy rights of EU citizens PART 3 THE ELECTORAL COMMISSION Strategy and policy statement 16 Strategy and policy statement 17 Examination of duty to have regard to strategy and policy statement Membership of the Speaker’s Committee 18 Membership of the Speaker’s Committee Criminal proceedings 19 Criminal proceedings PART 4 REGULATION OF EXPENDITURE Notional expenditure of candidates and others 20 Notional expenditure: use of property etc on behalf of candidates and others 21 Codes of practice on expenses 22 Authorised persons not required to pay expenses through election agent Registration of parties etc 23 Declaration of assets and liabilities to be provided on application for registration 24 Prohibition on entities being registered political parties and recognised third parties at same time 25 Section 24: transitional provision Elections Act 2022 (c. | Great Britain Electoral Law |
| 18 | (2) The high Court or (in Scotland) the Court of Session may make an information disclosure order against a person (“the respondent”) if satisfied on an application by a relevant enforcer that there is information identified in the notice under paragraph 1(1) which— (a) has not been provided as required by the notice (either within the time specified in the notice for compliance or subsequently), (b) is reasonably required by a relevant enforcer for a purpose within paragraph 1(1)(b), and (c) the respondent is able to provide. 37) Voting system for elections for certain offices 13 Simple majority system to be used in elections for certain offices PART 2 OVERSEAS ELECTORS AND EU CITIZENS Overseas electors 14 Extension of franchise for parliamentary elections: British citizens overseas Voting and candidacy rights of EU citizens 15 Voting and candidacy rights of EU citizens PART 3 THE ELECTORAL COMMISSION Strategy and policy statement 16 Strategy and policy statement 17 Examination of duty to have regard to strategy and policy statement Membership of the Speaker’s Committee 18 Membership of the Speaker’s Committee Criminal proceedings 19 Criminal proceedings PART 4 REGULATION OF EXPENDITURE Notional expenditure of candidates and others 20 Notional expenditure: use of property etc on behalf of candidates and others 21 Codes of practice on expenses 22 Authorised persons not required to pay expenses through election agent Registration of parties etc 23 Declaration of assets and liabilities to be provided on application for registration 24 Prohibition on entities being registered political parties and recognised third parties at same time 25 Section 24: transitional provision Elections Act 2022 (c. | Great Britain Electoral Law |
| 19 | (2) The high Court or (in Scotland) the Court of Session may make an electronic material disclosure order against a person (“the respondent”) if satisfied on an application by a relevant enforcer that there is electronic material referred to in the notice under paragraph 1(2) a copy of which— (a) has not been provided as required by the notice (either within the time specified in the notice for compliance or subsequently), (b) is reasonably required by a relevant enforcer for the purposes of determining whether electronic material has been published in contravention of section 41, and (c) the respondent is able to provide. 37) Voting system for elections for certain offices 13 Simple majority system to be used in elections for certain offices PART 2 OVERSEAS ELECTORS AND EU CITIZENS Overseas electors 14 Extension of franchise for parliamentary elections: British citizens overseas Voting and candidacy rights of EU citizens 15 Voting and candidacy rights of EU citizens PART 3 THE ELECTORAL COMMISSION Strategy and policy statement 16 Strategy and policy statement 17 Examination of duty to have regard to strategy and policy statement Membership of the Speaker’s Committee 18 Membership of the Speaker’s Committee Criminal proceedings 19 Criminal proceedings PART 4 REGULATION OF EXPENDITURE Notional expenditure of candidates and others 20 Notional expenditure: use of property etc on behalf of candidates and others 21 Codes of practice on expenses 22 Authorised persons not required to pay expenses through election agent Registration of parties etc 23 Declaration of assets and liabilities to be provided on application for registration 24 Prohibition on entities being registered political parties and recognised third parties at same time 25 Section 24: transitional provision Elections Act 2022 (c. | Great Britain Electoral Law |
| 20 | Section 73 [Jurisdiction of the high Court] (1) The high Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences (i) Of any Justice or Justices exercising the original jurisdiction of the high Court: (ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council: (iii) Of the Inter State Commission, but as to questions of law only: and the judgment of the high Court in all such cases shall be final and conclusive. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 21 | Section 74 [Supreme Jurisdiction of the high Court] (1) No appeal shall be permitted to the Queen in Council from a decision of the high Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the high Court shall certify that the question is one which ought to be determined by Her Majesty in Council. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 22 | Chapter III The Judicative Section 71 [High Court] The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the high Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 23 | (2) The appointment of a Justice of the high Court shall be for a term expiring upon his attaining the age of seventy years and a person shall not be appointed as a Justice of the high Court if he has attained that age. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 24 | (8) A reverence in this section to the appointment of a Justice of the high Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the high court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 25 | Section 75 [Original Jurisdiction of the high Court] In all matters (i) Arising under any treaty: (ii) Affecting consuls or other representatives of other countries: (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: (iv) Between States, or between residents of different States, or between a State and a resident of another State: (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the high Court shall have original jurisdiction. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 26 | The high Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 27 | Section 72 [Appointment, Removal, and Term of Justices] (1) The Justices of the high Court and of the other courts created by the Parliament (i) Shall be appointed by the Governor General in Council: (ii) Shall not be removed except by the Governor General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehavior or incapacity: (iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 28 | (6) A Justice of the high Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor General. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 29 | (2) But no exception or regulation prescribed by the Parliament shall prevent the high Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 30 | (3) Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the high Court. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 31 | (2) The high Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 32 | (3) Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the high Court to Her Majesty in Council. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 33 | Section 76 [Conferred Original Jurisdiction] The Parliament may make laws conferring original jurisdiction on the high Court in any matter (i) Arising under this Constitution, or involving its interpretation: (ii) Arising under any laws made by the Parliament: (iii) Of Admiralty and maritime jurisdiction: (il ) Relating to the same subject matter claimed under the laws of different States. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 34 | Section 77 [Jurisdiction of Federal Courts] With respect to any of the matters mentioned in the last two sections the Parliament may make laws (i) Defining the jurisdiction of any federal court other than the high Court: (ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States: (iii) Investing any court of a State with federal jurisdiction. Section 3 [Governmental Remuneration] There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. | Australia Constitution |
| 35 | (6) Habeas Corpus: Anyone who thinks that his or her detention is illegal may apply to the high Court for a writ of habeas corpus against the person detaining him or her. The Act known as the Bill of Rights 1689 deals with the exercise of the royal prerogative and succession to the Crown. | United Kingdom Constitution |
| 36 | and with the Indian Tribes; (4) To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; (5) To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; (6) To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; (7) To Establish Post Offices and Post Roads; (8) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; (9) To constitute Tribunals inferior to the supreme Court; (10) To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; (11) To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; (12) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; (13) To provide and maintain a Navy; (14) To make Rules for the Government and Regulation of the land and naval Forces; (15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; (16) To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; (17) To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; - And (18) To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Article I [Legislature] Section 1 [Legislative Power Vested] All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. | USA Constitution |
| 37 | Section 4 [Impeachment] The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Article I [Legislature] Section 1 [Legislative Power Vested] All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. | USA Constitution |
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