What does the Constitution say about the qualification of electors?

This week Greens Senator Jordan Steele-John announced that he will introduce a Private Members Bill in the Senate seeking to lower the age of voters for federal elections to 16.

The qualification of electors in the Senate is mentioned in Section 8 and for the House of Representatives in Section 30 of the Constitution. To summarise, these sections state that until the Parliament otherwise provides, the qualification of electors shall be prescribed by the law of the State.

How did it end up like this in the Constitution?

Each of the colonies that became States at Federation had different laws stipulating the qualification of electors. For instance, at this time women could vote only in South Australia and Western Australia. And Western Australians with more than one property could vote more than once. New South Wales and Victoria allowed only men to vote and they had only one vote. In Queensland only men could vote and the more property a man owned the more votes he got. Queensland had also specifically legislated that Aboriginal and Torres Strait Islander peoples could not vote. Tasmanian men had to have property or an income qualification and could have more votes per property. The minimum voting age was 21 in all of the colonies.

Voter enfranchisement was best displayed in South Australia. Queensland probably had the most disenfranchised people. The variety of elector qualification in the colonies did have an effect on how Sections 8 and 30 were framed in the Constitution.

In the draft Constitution of 1891, the qualification of electors was set to be prescribed by each of the States for the House of Representatives and Senators were going to be appointed by the Parliaments of the States. There was some discussion about the Commonwealth Parliament having some power to fix a uniform qualification for electors of the Federal Parliament, which might rule out a property qualification. But it was deemed to be an interference with the States which could have endangered the Federation cause in some of the colonies at that time.

Leaving the prescription for the qualification of electors with the States after Federation would have meant that each State could have different laws. In the second convention in 1897-98 the people writing the Constitution were concerned how this might be interpreted by the people, who would eventually vote on the Constitution at referendums. Although the people might not have been able to understand some of the intricacies of the Constitution, they certainly knew what democracy meant. They wanted a vote and fairness meant one vote per person. By this stage the class-dominated appointed upper Houses of the colonies were beginning to look undemocratic to the people.

Other Constitutions examined

The writers of our Constitution examined the qualification of electors in other Constitutions. The US Constitution left it up to the States to stipulate the qualification of electors. This was discussed in the 1897 convention as being a bit fraught as the US Constitution had been amended two times (before 1897) to encourage more universal suffrage. The Swiss Constitution stipulated that a voter must be 21 years of age and not excluded from voting in the Canton (State) in which they lived. It also made a provision for the Swiss Government to make laws to establish uniform voting rights. The Canadian Constitution was more similar to the shape that our Constitution eventually took in respect to voter qualification. The voting laws in the provinces in Canada applied until the Parliament of Canada otherwise provided.

In the debates there were two models discussed. One was that the States should be trusted to look after the qualification of voters. This was thought by some to be a State right. Another theory was that the National Parliament had an interest in who should be able to vote for it and that the Federal Parliament should be able to legislate on the matter. The enforcement of voting was even discussed (compulsory voting).

However, it was never considered that the qualification of electors should be stipulated within the Constitution. Laws had to be made, either by the State or Federal Parliaments. It was viewed as unsatisfactory that to change qualifications stipulated in the Constitution would require a referendum.

The writers of the Constitution created two elected Houses of Parliament in which the Federal Parliament can make laws for elector qualifications. The South Australians pushed for one adult one vote and this ended up being included. For each House, voters can only vote once. The practice in some colonies of being given more than one vote if you owned additional properties was stamped out in the Federal Parliament.

So here we are. It’s up to the Federal Parliament to decide who is qualified to vote in Federal elections.

Sometimes we hear people lamenting about some of the things that are left out of the Constitution. Some people believe that the qualification of voters should have been more prescriptive in our Constitution. However, these sections of our Constitution were deliberately written this way. It’s not always about what is contained in the Constitution, but also what was left out. If the qualifications of electors had been more prescriptive in the Constitution it would have been likely that the age of voting would be 21. There would have been huge fights at the Conventions about whether women would be qualified to vote and there may have had to have been compromise on property qualifications. In all likelihood Aboriginal and Torres Strait Islander peoples would have been specifically excluded. Leaving the qualifications up to the legislative process was the best path forward.

Women get the vote in Australian Federal elections but ATSI people are excluded

The Constitution came into force on 1 January 1901. A caretaker Government was put in place by the Governor-General Lord Hopetoun. The first election was held on 29-30 March 1901. The qualification of electors at this election was as prescribed by the States. It could be no other way. A Parliament first had to be elected to make elections laws. This meant that some women and some aboriginal people did get to vote in the first election. In 1902 the federal Parliament enacted the Commonwealth Franchise Act which legislated the qualification of electors. Men and women over the age of 21 who were subjects of the King could vote. Aboriginal and Torres Strait Islander peoples, along with anyone from Africa, Asia or the Pacific Islands were disqualified. Also disqualified were people of an unsound mind, attainted of treason or under sentence or subject to be sentenced for an offence punishable of imprisonment of one year or longer. 

It wasn’t until 1925 that compulsory voting was introduced in Australia. Low voter turn-out in the elections before this precipitated the change. In 1924 the voter turnout was 59.38%. In 1927 compulsory voting saw the turnout rise to 91.31%.

It wasn’t until 1962 that Aboriginal and Torres Strait Islander peoples were allowed to voluntarily enrol and vote in federal elections. Queensland was the last state to allow ATSI people to vote in their State elections in 1965. In 1973 the age for enrolment, voting and candidature for all Federal elections was lowered from the age of 21 to 18. This was in response to the backlash over the Vietnam War. Many 18 to 20 year olds were conscripted and sent to war without having the right to vote.

Should we lower the age of voting again?

There are arguments for and against lowering or raising the age of voting. There have been debates in the Parliament in recent years about again raising the age back up to 21. In many ways it’s a fraught and political process. We could look at this cynically and say the different parties have different positions because of the votes that may or may not be in it for themselves. Currently the Greens and some in Labor support lowering the age, the Coalition would like it to remain the same and One Nation would like the age to go up.

One argument for lowering the age of voting is that many young people work and pay tax, but have no say in the election process about how those taxes are spent. They also have a longer-term interest in the political process as they will be around longer.

The other side of the argument is that young people don’t have enough information to be properly informed voters. The legal age of an adult is 18 and so it is acceptable for the age of voting to also be 18.

The implied right to vote

Through interpretation of the Constitution, the High Court has found that we have an implied right to vote in Australia. Voting is fundamental to our system of representative government and the right to vote can only be limited for a substantial reason.

In Roach v Electoral Commissioner 2007 the High Court decided that persons in jail for less than three years did have a right to vote and could not be excluded by legislation that had been passed in 2004 (to see this case in detail visit our recently opened Australian Constitution Centre at the High Court in Canberra). The majority judgment in Roach stated:

Voting in elections for the Parliament lies at the very heart of the system of government for which the Constitution provides.

Universal adult suffrage is mentioned throughout the judgement, where the age of 18 is the legal majority throughout Australia. The removal universal adult suffrage is mentioned. Chief Justice Gleeson stated:

Could Parliament now legislate to remove universal adult suffrage? If the answer to that question is in the negative (as I believe it to be) then the reason must be in the terms of ss 7 and 24 of the Constitution, which require that the senators and members of the House of Representatives be "directly chosen by the people" of the State or the Commonwealth respectively.

This helps inform us about the One Nation proposal of taking the right to vote away from 18-20 year olds. It might be unconstitutional. But is there anything in this judgement that could help inform us about extending the right to vote to 16 and 17 year old? Chief Justice Gleeson discusses excluding classes of people from voting:

There would need to be some rationale for the exception; the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice.

Later in the judgement the majority Justices Gummow, Kirby and Crennan discuss the evolutionary nature of representative government:

…in providing for those fundamentals the Constitution makes allowance for the evolutionary nature of representative government as a dynamic rather than purely static institution.

Many would argue that the age that you become an adult is still 18. But has our representative government evolved enough so that 16 and 17 year olds might have the capacity to exercise free choice if they were to be given the right to vote? Are these young people capable of casting a fully informed vote? Are they able to acquire the relevant information needed to make an informed vote? Are we disenfranchising young Australians unnecessarily?

Note: Switzerland was the last country in the world to lower the voting age from 21. This is an example of why it was a good decision not to be too prescriptive about voter qualifications in the Constitution.

Image attributed to Jordan Steele-John’s Facebook


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