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Is Australia's 'right to vote' well protected?

Updated: Jun 26

With an election in coming, many Australians have questions about their right to vote.


‘Is it protected?’ and ‘How is it protected?’ are just two of the questions that come to mind.


In Australia, the High Court acts as a ‘guardian of the Constitution’ as it is the only body that has the power to interpret the Constitution and confirm or deny what its wording may imply. Hence, it can be argued that the ‘right to vote’ is protected as the High Court of Australia has confirmed it exists and, therefore, every lower court has to recognise it due binding precedent.


While Australia has no Bill of Rights, meaning there is no singular document that expressly states every single right we have as Australians, the Australian Constitution – our most important legal document – contains both entrenched and implied rights.


Entrenched rights are the five rights that are expressly stated in the Constitution. Implied rights are those that are said to be there as confirmed by the High Court of Australia, yet not expressly stated in the Constitution.


One of these implied rights is the ‘right to vote’, found in Sections 7 and 24 of the Constitution. Section 7 reads, “The Senate shall be composed of Senators… chosen by the people of the State,” and Section 24 reads, “The House of Representatives shall be… directly chosen by the people of the Commonwealth.” The High Court interpreted this to mean that the Australian people do have the ‘right to vote’. This can be attributed to the fact that the only way to ensure that this wording was adhered to was via a voting system.


To explain it further, Australia has a representative government. The Australian public vote on who they want to represent them in Parliament, and these votes help create Government. As stated previously, Representative Government is also protected in Section 7 and 24. Within these Sections, it is stated that whether it is the Senate or the House of Representatives, anyone that has a seat in Parliament will be chosen by the “people of the State” (the Senate) and the “people of the Commonwealth” (for the House of Representatives). As a result, there is only one discernible way to achieve Representative Government as stated in the Constitution via the ‘right to vote’.

Despite the right to vote being implied in the Australian Constitution, the High Court is key when it comes to protecting it.


However, although Australia has the implied ‘right to vote’, not every Australian possesses it. To vote in Australia you need to be a citizen, be eighteen years old or above, and be serving a sentence of imprisonment less than three years. This precedent was set in the case of Vickie Lee Roach.


Following a successful attempt by the Government to rescind the voting rights of all prisoners, Vickie Lee Roach, who had legal standing on the matter, took the case to the High Court in 2007 believing her rights had been infringed upon. As a First Nations woman, she not only fought for this right more broadly, but she also fought for it for other First Nations people – who are more likely to be incarcerated and thus be denied their voting rights through this rule, perpetuating discriminatory practices of exclusion.


Through this case, the High Court of Australia determined there had been an element of ‘ultra vires’ (the High Court determined that Parliament had gone outside their law-making powers) as the Act did infringe upon people’s rights. Six of the seven Justices presiding over this case made sure that the right to vote was given back to anyone serving less than three years. While the conclusion can be drawn that the right to vote is well protected since it was earned back, it is equally concerning that Parliament could revoke it in the first place.


Overall, the ‘right to vote’ in Australia is quite well protected. It has been determined that the Australian Constitution implies its existence, any instance to unjustly strip Australians of their ‘right to vote’ has been rectified, and the highest court in the Australian Court hierarchy has confirmed its existence. While, like most things, there is always room for improvement (as demonstrated by the Roach Case) holistically, within Australia, the ‘right to vote’ is well protected.


Therefore, as young Australians it is important for us to recognise the power we hold when we go to vote, and it is not one we should take lightly. In a global context we have seen the propensity for elections to shift the global landscape, and now, in a federal election year everyone eligible needs to utilise this right, to shape our country the way we want it.


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