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Published online by Cambridge University Press: 24 January 2025
This collection of articles, commentaries and book reviews, published here in the Federal Law Review, forms only the second symposium on electoral law published in Australia. Interest in how democratic choice is regulated and how elections are run – the rules of the game of electoral politics and the ways in which its dynamics intersect with those rules – is a staple of media debate and political science. Yet it is only beginning to emerge as a focus of sustained attention in the legal academy.
In the Australian and New Zealand common law tradition, the law governing elections in particular and democracy in general has been historically subsumed, and to a degree lost, under the broader rubric of ‘constitutional law’. In part this has been imposed from without; a product of the dicing up of the discipline of law into broad doctrinal categories to suit the legal profession, a practice perpetuated by the dictates of the admission rules. However, it has also been the consequence of academic neglect: an overlooking of the potential of the field by legal scholars.
1 The first was a special issue of the Griffith Law Review on Electoral Regulation: (1998) 7(2)Griffith Law Review.
2 Angela O'Neil, 'Justiciability: The Role of Courts in Reviewing Electoral Administration' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law
3 As the One Nation deregistration cases remind us: see Sharples v O'Shea [1999] QSC 190; cf R v Hanson [2003] QCA 488.
4 See, eg, Roberts v Bass (2002) 212 CLR 1.
5 (2004) 209 ALR 582, 585.
6 For an entertaining analysis and reflection on that litigation, written for a non-US audience,see Daniel Lowenstein, 'Lessons from the Florida Controversy' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 7.
7 Richard, Hasen, 'Introduction. Election Law at Puberty: Optimism and Words of Caution'(1999) 32 Loyola of Los Angeles Law Review 1095, 1096 (quoting Daniel Lowenstein, 'Election Law as a Subject – A Subjective Account' (1999) 32 Loyola of Los Angeles Law Review 1199, 1202 n 7).Google Scholar
8 See the Senate Finance and Public Administration References Committee, Parliament of Australia, Inquiry into Government Advertising http://www.aph.gov.au/Senate" class="a" target="_blank">(2004) though suspended due to the prorogation for the federal election http://www.aph.gov.au/Senate" target="_blank"><http://www.aph.gov.au/Senate
9 See, eg, Samuel Issacharoff, Pamela Karlan and Richard Pildes, The Law of Democracy: Legal Structure of the Political Process (2nd ed, 2001).
10 Ably chronicled in Australia by Gerard Carney, Members of Parliament: Law and Ethics (2000), IC Harris (ed), House of Representatives Practice (4th ed, 2001) and Harry Evans (ed),Odger's Australian Senate Practice (10th ed, 2001).
11 George, Williams, 'A Legal Perspective on Electoral Research' in Jane Peace and Janet Taylor(eds), Electoral Research The Core and the Boundaries (2000) 28, 28-9Google Scholar.
12 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
13 Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into Electoral Funding and Disclosure began August 2000 but lapsed with 2001 federal election:http://www.aph.gov.au/" class="a" target="_blank"><http://www.aph.gov.au/house/committee/em/f_d/index.htm> at 14 December 2004. It was revived as an 'Inquiry into Disclosure of Donations to Political Parties and Candidates' but that lapsed with the 2004 federal election: <http://www.aph.gov.au/ house/committee/ em/donations/index.htm> at 14 December 2004.
14 See Michael Maley, 'Australian Electoral Law: Not a Model for Others' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 40.
15 Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003).
16 Orr, Graeme, Mercurio, Bryan and Williams, George, ‘Australian Electoral Law: A Stocktake’ (2003) 2 Election Law Journal 383CrossRefGoogle Scholar; Graeme Orr, Australian Electoral Systems – How Well Do They Serve Political Equality? Democratic Audit of Australia Report No 2 (2004).