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Wednesday, 11 May 2011
Page: 2243


Senator RYAN (Victoria) (11:23): I will not recap the contribution of Senator Fifield on the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2011 other than to say I am in support of it, particularly his critique of how we got to this point through the decisions of the High Court and the history of electoral reform in this area. I will not in detail debate the contribution of my predecessor; the issue has been debated many times in this place. But as long as the government refuses to address the single biggest donors to political parties in this country—the very groups that actually control the party that makes up the government—then, quite frankly, its bleating about transparency will never be taken seriously. And it is nothing more than that—contrived bleating.

To suggest or imply that there are people on this side of the House that do not want every Australian who has the right to exercise their vote to do so is to mislead this debate. At the same time, to say that it is somehow a burden to have to fill out a simple, DL sized, envelope sized, form to enrol to vote—that it is somehow hard to expect people to comply with that law to exercise their right to vote at polling places open all around the country, through prepoll voting, which is getting more and more common, or through postal voting, which is as easy to access here as anywhere in the world—is to lower the bar for voting so much that it becomes worthless.

The opposition opposes the bill. To add to the contribution of Senator Fifield, I would like to discuss how we got here, because I think this is very important. This legislation poses a challenge for this parliament because it is partly—the government probably has a different view, but at least on our side we accept this—the result of High Court decisions in Rowe and Roach. They pose a challenge for this parliament, and I will go into that, but at the outset I will say that I am a strong supporter of judicial review; I always have been. A written constitution requires an authority to expound and enforce it and, in the words of Justice John Marshall, 'we must never forget that it is a constitution we are expounding', it is not merely a normal statute. In that great case of Marbury v Madison, which established this point, he said:

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

That may seem a little complex, but it is essentially the clause that established the concept of judicial review as we know it, and it is an important part of our Constitution.

But it also poses a challenge. The High Court rightly draws limits around the powers of this place. We have in our Constitution a Commonwealth of limited powers. For a decade it was debated and deliberated upon in great detail by the founding fathers and drafters, who were elected by the people after 1897. These drafters were, I should restate, elected by the people, and the Constitution was in a meaningful sense adopted by the people of Australia at the time voting in referendum—in some cases, on multiple occasions. For those who would put the view that it is merely an act of the Westminster parliament, I point them to the opening clauses of the Constitution, which qualify the position of Western Australia pending the result of a referendum being held in that state. In every meaningful sense, our Constitution was adopted by the people of Australia just over a century ago.

Despite the constant invitations by those opposite to change the original text, it has remained unchanged. I actually view the failure of referenda proposals put up by this place as a success of democracy rather that something that needs to be addressed. One of its great elements is that our Constitution was made the property of the people by section 128 and it is outside the power of this place to change that—it requires a vote of the people to do so. This legislation directly impacts on that, but it also is a result of the Constitution remaining outside the ambit of this place.

At referendum after referendum, the people of Australia have voted against constitutional change that centres more power in this place. They have also voted against change that allegedly creates or enshrines certain rights, and they have done so on multiple occasions. Yet, over decades, this parliament has attempted to circumvent those with elaborate constitutional schemes to avoid the protections granted to the people assembled in state parliaments.

It was the High Court, the so-called 'keystone of the federal arch', that was supposed to prevent this, and I do not think anyone would argue seriously that it has failed. In the particular case that I am getting to, we do have the High Court discovering certain 'implied rights', or however they may be described. It has failed to protect the constitutional structure from actions of the Commonwealth parliament and it has failed to protect it from temporary political passions, with notable exceptions—and this is the quandary we now find ourselves in. While the High Court has allowed the contrived constitutional constructs of the uniform tax cases and has seen fit to draw no boundaries around the two words 'external affairs' in section 51 of the Constitution—or, indeed, trading and financial corporations—the High Court has done so on this occasion. It has also, rightly, protected the judicial power from encroachment by the legislative powers. But it has seen fit to intervene in electoral administration. This is not a voting rights case; this is an administrative one. If I turn to the Constitution and the clauses upon which this hangs, section 7 and section 24, we find the important words 'directly chosen by the people'. These are the words that the High Court has used to infer a limit on the Commonwealth power in this place to administer the electoral processes, despite the fact that section 30 outlines that the qualifications of electors stand as they are until the parliament otherwise provides. The Constitution grants these powers to the parliament and we find ourselves in a situation now where the High Court, despite not actually finding any implicit real restrictions on Commonwealth power with respect to its legislative power vis-a-vis the states, has done so on, of all things, whether or not the electoral rolls close and when they do so. In this particular case the High Court's decision, the dissent that was outlined by Senator Fifield and the words of Justice Heydon, where he referred to people being the authors of their own misfortune, may in fact come back to haunt this place, because decisions have actually been known in this place to be changed. That is the basis of the judicial power.

I put to you, Acting Deputy President Trood, and to the parliament that the High Court has seen fit to constitutionally intervene in an electoral matter that did no more than exercise the power to administer elections that is implicit in this place and that in fact the words 'directly chosen by the people' do not necessarily constitute a reasonable interpretation of the timing of electoral rolls closure.

The founders consciously chose to avoid the inclusion of a bill of rights in our Constitution. There are various guarantees scattered that generally limit the power of the Commonwealth throughout it, but it was a conscious decision to not have a section that guaranteed due process or a section that guaranteed voting rights. In fact, one of the founding fathers, Andrew Inglis Clark, promoted this very point and a due process amendment similar to the US 14th amendment, but he did not succeed. Yet our High Court has determined that this one limitation upon Commonwealth power should be discovered; that this one implication, this one implied right, should be discovered about something about the timing of rolls closure—not to do with who is eligible to be on the roll, at least in the Rowe case, but purely about the timing of the closure of rolls.

That is fine, but we should actually look at the High Court over its century—or 90 years since the Engineers case—and whether it is actually applied the same standard of discovering limitations on Commonwealth power in fulfilling its prime constitutional role, and that is to limit the powers of this place vis-a-vis the states. In this case I will actually quote the words of then Professor Greg Craven, who outlined in his Deakin Lecture in 1997:

The positive, and fundamental role of the High Court was to protect federalism. In this connection, it goes without saying that the Constitution itself breathes federalism, not merely implicitly, but expressly in its very terms.

In reference to decisions that were discovering rights that were literally not written into the Constitution—not all of whose cases I actually oppose—he also said:

Fundamentally, there were two things that the Court was not intended to do. Generically, it was not to be the role of the Court [to] "up-date" the Constitution in light of the passage of time. Secondly, and more specifically, the Court was not intended to operate as a court of human rights, enforcing abstract constitutional guarantees of civic liberties.

Those two facts are incontrovertible when one looks at the Hansard of our convention debates. We do not rely on the notes of people that were there; we actually have a full record of the committees and of the conventions themselves. I put to you, Acting Deputy President, and to the parliament, that in considering this legislation and how we got here, while we duly respect the decision of the High Court—it has that role in our Constitution—we should also consider whether or not, while it finds implicit limits upon Commonwealth powers in words that do not exist in the Constitution, while it finds implied rights that specifically were not placed in the Constitution by the people who drafted it and then put it to the Australian people for a vote, the High Court, discovĀ­ering these, is failing in its most important duty, the role for which it was created, which was to actually limit the activities of the Commonwealth parliament in those areas with which it was specifically prescribed.

The opposition will be moving amendĀ­ments to this legislation to maintain some degree of integrity in our voting system and some degree of fairness in our justice system to ensure that not all those prisoners who necessarily under the Labor Party's model would get to vote will get to vote. They are fair and reasonable amendments.