A Drivers of This Fuller History

This account of the distinctive nature of Australian constitutional democracy was itself the product of contemporary drivers. Perhaps the most important was a renewed search for a unique Australian civic identity grounded in the Constitution itself. From the mid-1980s to early 2000s, Australia underwent a significant political transformation. With the signing of the Australia Acts of 1986, Australia severed its final ties with the United Kingdom. Formal independence triggered the growth of civic nationalism linked to the Australian Constitution and the (ultimately unsuccessful) republic movement of the 1990s. Finally, in 2001, Australia celebrated the centenary of its Constitution. These events signalled an important shift in the view of the Constitution: it now clearly owed its legitimacy to the ‘authority of the people of Australia’.^{Footnote 70} As part of these changes, historians studied democratic innovation during the federation and its impact on the Constitution.^{Footnote 71}

Another key driver was the turn away from economic, imperial and labour history towards cultural, transnational and intellectual history in professional history. This change turned Australian historians’ attention to the distinctive constitutional ideas underpinning Australian constitutionalism before and during federation.^{Footnote 72} This included the transnational flow of constitutional ideas from Britain, Switzerland and the United States to Australia.^{Footnote 73} The Australian drafters then combined these ideas in a distinctive system that guarantees that ‘the people’ would play a central role in parliamentary democracy. The significance of these radical ideas to the Australian Constitution shows the extent to which it broke with not just United States concepts of rights-based democracy but also British ideas of parliamentary sovereignty in which ‘the people’ only exercise a limited form of political sovereignty.

B The People’s Constitutionally Guaranteed Role in Australian Representative Democracy

This intellectual and cultural history remembered the distinctive constitutional ideas and practice of the colonial and federation period.^{Footnote 74} Irving describes how the decades before Federation were characterised by ‘social experiment’ in ensuring a more egalitarian and popular form of representative democracy powered by the working class.^{Footnote 75} This also included expanding the franchise to women.

These historians described the remarkable success of Chartist constitutional ideas in colonial Australia (in contrast with their failure in Britain).^{Footnote 76} For instance, Paul Pickering described how Chartist constitutional ideology had successfully embedded itself in the Australian colonies by the 1850s and was grounded on ‘a popular interpretation of Britain’s constitutional history’.^{Footnote 77} This Chartist constitutionalism rejected emerging conceptions of parliamentary sovereignty and instead argued that there were fundamental principles that placed limits ‘beyond which no parliament could reach’.^{Footnote 78} These principles — such as broad suffrage laws and the right for the people to peaceably assemble — ensured a form of ‘popular constitutionalism’ that guaranteed a central role for the people in parliamentary democracy.^{Footnote 79}

These Chartist ideas shaped the nascent constitutional orders of the colonies in the middle of the 19^th century, leading to the introduction of (almost) universal manhood suffrage in the lower houses of many Australian colonial parliaments.^{Footnote 80} This expansion of the franchise was particularly strong in South Australia, where both women and First Australians earned the right to vote by the late 19^th century.^{Footnote 81} It is important not to overstate the influence of these ideas: the colonial constitutional orders retained upper houses that were either unelected or chosen by a very narrow group of propertied men. But these reforms were significant and were noticed outside of Australia. United States President Teddy Roosevelt declared Australia to be a ‘splendid object lesson’ in representative democracy.^{Footnote 82} These colonial constitutions served as a critical background for the federation movement in the 1890s; they were frequently mentioned as examples in the drafting discussions. Moreover, section 41 of the Constitution guaranteed that the broad franchise that had developed for these lower houses would apply to Commonwealth elections.

A group of ‘new federation historians’ then specifically focused on the distinctive role of ‘the people’ in Australian constitution-making in the 1890s.^{Footnote 83} They described how the initial constitutional draft of 1891 was produced by a process with little role for the people. The draft drew heavily on British parliamentary sovereignty and gave the people no guaranteed role in Australian representative democracy.^{Footnote 84} Furthermore, it included an appointed upper house and allowed ministers to sit outside parliament. It was, however, abandoned.^{Footnote 85}

They then described how the federation movement was revived when a series of bottom-up federation conventions proposed to turn to ‘the people’ and ‘not politicians’.^{Footnote 86} A new process was devised in which the people would directly elect representatives to a new constitution-making convention. Hirst explains how this role for the people outside of parliament drew on American constitutional ideas that found their way to Australia through James Bryce’s influential book The American Commonwealth.^{Footnote 87} This book contained an entire appendix that described the ways that the people could act through conventions outside of the legislature.^{Footnote 88} Moreover, Irving describes how the concept of the ‘people’ acting outside of parliament helped ensure that ‘[t]he people had become the legitimizing force behind federation’.^{Footnote 89} For instance, women’s groups such as the Women’s Christian Temperance Union played an important role in restarting the federation process and petitioning the elected drafted convention.^{Footnote 90}

The new federation history then explained how this popular process injected distinctive democratic ideas into the constitutional drafting process. The Victorian Premier (George Turner) at the first meeting of this elected convention set the tone by advocating a number of voting guarantees that ensured that ‘the people’ played a central role in Australian representative democracy.^{Footnote 91} These ideas were not uncontested; they drew criticism from delegates who wanted a system of democratic governance closer to the British model.^{Footnote 92}

But ultimately these ideas found their way into the text of the Constitution. They were successful not just for ideological reasons; they were also practically important. A strong constitutional commitment to the people was crucial to the successful ratification of a constitutional system with an upper house that gave the smaller states equal representation.^{Footnote 93} The ‘yes’ vote in Victoria and NSW ultimately succeeded by stressing how the Constitution created the ‘most democratic’ federation in existence.^{Footnote 94} For instance, Alfred Deakin’s justification of the draft was grounded in its democratic exceptionalism: ‘you will look in vain for [a constitution] as broad in its popular base, as liberal in its working principles, as generous in its aim’.^{Footnote 95} Moreover, George Reid, the Premier of NSW, strengthened the role of the people in the draft constitution at a secret Premiers’ conference to ensure that the constitutional draft was successful in a second referendum in NSW.

The text of the Australian Constitution therefore reflected a distinctive combination of Chartist and American understandings of popular democracy. It included a number of systemic and structural provisions to guarantee a direct role for the people.^{Footnote 96} First, the preamble described ‘the people’ (and no longer ‘the Australasian colonies’) as creating the Constitution.^{Footnote 97} Second, it introduced a number of guarantees of popular control over parliament. Chapter I required the upper house of Parliament (the Senate) to be ‘directly chosen’ by the ‘people of the State(s)’ (section 7) and the lower house of Parliament (the House of Representative) to be ‘directly chosen’ by ‘the people of the Commonwealth’ (section 24). These provisions broke with the 1891 draft by providing the people with a constitutional guarantee of a ‘direct’ choice of their representatives in both the lower and upper house of Parliament.^{Footnote 98}

Sections 7 and 24 also showed the plural nature of ‘the people’ in Australia: they acted not just as a national entity but also as the people of the states. This plural conception of the people was reflected in section 128 which gave ‘the people’ (and not parliament) the constituent power to make constitutional law — but only when a majority of the national people and the majority of people in a majority of states agreed.^{Footnote 99} This referendum process was widely assumed to be one that would allow the people to frequently amend the Constitution,^{Footnote 100} leading one commentator to worry that it would allow the ‘habit of tinkering’ with the Constitution.^{Footnote 101} This gave the Australian people (and not parliament) the legal sovereignty to alter their constitutional order through a referendum.^{Footnote 102}

This plural understanding of the people — particularly when reflected in an upper house (Senate) that gave equal representation to all states — was criticised for rejecting a purely majoritarian form of democratic politics. This criticism was particularly strident from Australia’s emerging labour movement, which wanted fewer checks and balances on broad-based electoral majorities.^{Footnote 103} The rejection of majoritarianism, however, was defended as democratic by its supporters on the basis that it was more inclusive. For instance, Andrew Thynne in the 1891 Convention argued that ‘minorities’ deserved legislative protection against what he called ‘the tyrannic exercise of the power of temporary majorities’.^{Footnote 104} This desire to ensure minority representation triggered serious discussions of proportional representation voting rules for the Senate in the drafting conventions.

The Constitution also included key guarantees about the makeup of the plural Australian people. Sections 8 and 30 banned plural voting and section 24 required the House of Representatives (the more representative body) to be twice the number of senators. Section 41 also required that the franchise for both houses to be tied to that of the most progressive franchise, the lower house at the state level which had been transformed under Chartist ideology in previous decades. Section 28 also drew on a Chartist call for short parliaments by entrenching a requirement that the House of Representatives be elected every 3 years or less.

Finally, the Constitution included additional systemic mechanisms for ‘the people’ to ultimately resolve legislative deadlocks between the houses of parliament.^{Footnote 105} A critical new section gave the people the ability to break legislative deadlocks in a double dissolution election followed by a joint sitting of both houses.^{Footnote 106} George Reid described this provision in the convention debates using agency law terminology, explaining that the provision allowed the people as ‘principal’ to finally settle ‘what the agents cannot accomplish’.^{Footnote 107} Another delegate, William Trenwith, used similar language, arguing that when ‘the agents’ — that is, the houses of parliament — are unable to agree, they are ‘called upon by their principals to stand aside and refer that matter to the principals’.^{Footnote 108}

This innovative constitutional system and its distinctive role for ‘the people’, however, was racially exclusive.^{Footnote 109} Helen Irving describes how Australians sought to purify their democratic exceptionalism from any contamination ‘that would come from coloured people in numbers’.^{Footnote 110} Democratic innovation did not extend to non-white Australians. Furthermore, the push for universal manhood suffrage in NSW, Victoria, Tasmania and South Australia meant that First Nations men technically had the franchise.^{Footnote 111} But this right to vote was extremely difficult to exercise, particularly as Australia’s growing nationalism was linked with race.^{Footnote 112} Patricia Grimshaw describes federation as a problematic ‘turning point’ in consolidating ‘white policies towards Aborigines that all but extinguished a promised path to citizenship’.^{Footnote 113}

The text of the Constitution reflected the racist nature of the people in federation-era Australia. Although the Constitution recognised ‘the people of the States’ as part of the plural Australian people, it did not recognise First Australians. Instead, section 127 excluded First Australians from ‘the people’, stating that they were not to be counted ‘in reckoning the numbers of the people of the Commonwealth’. This exclusion accompanied decades of legal discrimination, starting with the Commonwealth Franchise Act that barred First Australians from voting.^{Footnote 114} More broadly, section 51(xxvi) gave the Commonwealth Parliament the power to make ‘special’ laws for ‘the people of any race’ (except for First Australians). Edmund Barton commented that this power was intended to ensure that the Commonwealth would ‘have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’.^{Footnote 115} Finally, section 25 stated that if particular ‘races’ were excluded from voting, they were not to be counted in the general ‘reckoning’ of the number of people.

The consequences of this fuller history of simultaneous democratic innovation and racial exclusion in Australian constitutional democracy have not been fully realised in Australian constitutional law or discourse. The following sections will explain these important consequences. First, this fuller history shows that the general purpose of sections 7 and 24 of the Constitution is to guarantee that ‘the people’ can control parliament through the vote. This constitutionally guaranteed form of popular political constitutionalism provides a new way of justifying the limitations the Court has placed on parliament on the basis of representative democracy (part 4). Second, it helps to understand the distinctiveness of Australia’s constitutional system and demonstrates why constitutional recognition for First Australians is an important step in further developing this system (part 5).

A The Implications from Representative Government

In a series of cases, the High Court has held that sections 7 and 24 contain important implications that limit parliament’s power to pass laws that impact the franchise or political speech. These limitations on parliament have faced persistent ‘interpretive disagreement’.^{Footnote 123} This criticism is frequently underpinned by a key argument: these implications are not necessary to Australian representative democracy because they conflict with Australia’s commitment to parliamentary sovereignty. The implications, the argument concludes, are inappropriate and should be abandoned.

First, the Court has held that the constitutional guarantee of representative democracy requires Parliament to justify legislative burdens on political communication.^{Footnote 124} This implication has proven highly controversial. For instance, Justice Heydon has argued that the implied freedom of political communication ‘is a noble and idealistic enterprise which has failed, is failing and will go on failing’.^{Footnote 125} Nicholas Aroney has written that the implied freedom of political communication conflicts with ‘the prevailing wisdom among the framers of the Constitution . . . in favour of parliamentary sovereignty’.^{Footnote 126}

Second, the Court has held that the constitutional guarantee of representative democracy requires Parliament to have a ‘substantial reason’ if it passes a law that burdens or limits the electoral franchise.^{Footnote 127} The Court has argued that ‘chosen by the people’ changes over time as Parliament expands the democratic franchise through legislation. The Court’s use of an evolving ‘legislative baseline’ to determine constitutionality has proven controversial.^{Footnote 128} For instance, Justice Hayne criticised the Court for linking the ‘ambit of constitutional power’ to what is ‘politically accepted’ in legislation.^{Footnote 129} Anne Twomey has argued that this approach is ‘radical’ and ‘not justified by the text or structure of the Constitution’.^{Footnote 130} In particular, she argues that it undermines ‘the principle of parliamentary sovereignty’ by allowing parliament to bind future parliaments.^{Footnote 131}

B History, Cole v Whitfield and Sections 7 and 24

If Australia had adopted a federal version of British parliamentary sovereignty at federation, these are persuasive critiques of the implications the Court has drawn from representative democracy. An Australian form of parliamentary sovereignty would be fully ‘opposed to judges having power to protect them from legislation’ outside of the textual limitations largely stemming from federalism.^{Footnote 132} With this understanding of Australian representative democracy, therefore, the Court has gone astray and neither implication is appropriate.

But read in light of the intellectual history of Australian representative democracy described in part 3 above, it becomes clear why the text and structure of sections 7 and 24 necessarily require the implications the Court has drawn. Cole v Whitfield tells us how we use history to understand the meaning of constitutional text and structure.^{Footnote 133} In that case, a unanimous High Court described the role of history in understanding the meaning of constitutional text and structure. The Court stated that ‘reference to history’ is used to understand ‘the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged’.^{Footnote 134}

The Cole formulation therefore explicitly includes an orthodox technique in interpreting legal text: using historical context to understand the general purpose or mischief to which the text is directed. In a leading case describing this technique, the High Court has explained that the modern purposive approach to textual interpretation uses history prior to adoption of the text in its ‘widest sense’ to understand ‘the mischief’ which the text was ‘intended to remedy’.^{Footnote 135} Cole signals adherence to this approach by describing constitutional interpretation in light of the ‘nature and objectives of the movement towards federation’ from which the Constitution emerged.

By directing the interpreter to understand constitutional text and structure in light of the nature and objectives of the ‘movement’ towards federation, Cole requires a wide understanding of the historical context prior to constitutional adoption. This includes an understanding of the direction of pre-adoption history and how the text fits into this broader constitutional movement.^{Footnote 136} Thus, in the Cole case itself, the Court seeks to understand the broader purposes to which the words ‘absolutely free’ in section 92 are directed by looking to the broader sweep of colonial and federation-era history. The Court describes how this history shows that section 92 was part of a general free trade movement. At the time, this was focused on forbidding particular burdens on inter-colonial trade such as customs duties.^{Footnote 137} It then, however, abstracts from this to a general purpose of blocking any ‘discriminatory burdens of a protectionist kind’, including those not understood at the time of constitutional adoption.^{Footnote 138} This was made clear in the Betfair case, when the Court invalidated a Western Australian law that banned internet-based betting exchanges.^{Footnote 139}

The guarantee of representative democracy in sections 7 and 24 must be interpreted in the same manner. The intellectual history shows that sections 7 and 24 were part of a movement towards federation that sought to constitutionally guarantee a direct role for the people in Australian representative democracy. This history shows how sections 7 and 24 are part of a wider constitutional system that includes sections 8, 28, 30, 41 and 128. These other provisions reveal the general constitutional purpose of ‘directly chosen by the people’ is to mandate a constitutional system where the people can hold parliament accountable.

Read in line with Cole, therefore, sections 7 and 24 protect against laws that undermine the ability of the people to use the vote to exercise political control over parliament. Justice McHugh explains that sections 7 and 24 require a ‘process’ that enables the people to cast an ‘effective vote at election time’.^{Footnote 140} This explains why the implications the Court has drawn are necessary: they ensure that the people continue to play a central role in Australian popular political constitutionalism. This implication clearly requires a limited but important role for courts. As Justice Toohey describes it, the ‘essence’ of the constitutional guarantee of representative democracy remains ‘unchanged’ but the method of ‘giving expression to the concept varies over time’ as different challenges emerge.^{Footnote 141} Thus, for instance, as the democratic franchise and the definition of the people expands, courts must scrutinise laws that reduce the size of that franchise. Furthermore, as new legislative threats emerge to the system of political communication which undermine the ability of the people to choose their representatives, the courts must require parliament to justify these laws.

C The Implied Freedom of Political Communication

The intellectual history of Australian constitutional democracy has played little to no role in either justifying or shaping the implied freedom of political communication. In Australian Capital Television Pty Ltd v Commonwealth (‘ACTV’), for instance, the Court cited authorities such as the American Solicitor General, Archibald Cox, as the basis for the implication.^{Footnote 142} In Lange v Australian Broadcasting Corporation, the Court retreated from ‘political principles or theories’ extraneous to the Constitution and instead argued that the text and structure of the constitution alone justify this implication.^{Footnote 143}

The intellectual history provides critical context for understanding why the text and structure of the Australian Constitution necessitate this implication. Initially, it refutes the argument that the implied freedom of political communication is illegitimate because Australian representative democracy reflects British parliamentary sovereignty.^{Footnote 144} Instead, this new intellectual history demonstrates that the sections 7 and 24 were part of a constitutional movement that constitutionally guaranteed ‘the people’ a role in Australian representative democracy. This constitutionally guaranteed form of popular political constitutionalism breaks with the absolute judicial deference in parliamentary sovereignty and instead requires courts to also play a role in scrutinising legislation that impairs the free flow of political communication necessary for the people to hold their representatives accountable through the vote.^{Footnote 145}

This purposive approach to the interpretation of sections 7 and 24 also explains why the freedom of political communication is guaranteed despite the rejection of a bill of rights at federation. It shows that Australia’s movement towards federation had a unique conception of representative democracy and political constitutionalism that rejected individual rights in favour of a constitutional guarantee that the people can hold parliament to account through the vote. This special constitutional role for the people in the Australian legal system was obscured for many years by Australia’s ambiguous colonial relationship with the United Kingdom. After the Australia Acts of 1986, however, it was clear that Australia was a fully independent nation.^{Footnote 146} This shaped the High Court’s recognition of the role of the Australian people in the constitutional order and therefore the implied freedom. For instance, in an important early case recognising this implication, Chief Justice Mason argued that the Australia Act 1986 (UK) marked the end of the ‘legal sovereignty’ of Imperial Parliament and that ‘ultimate sovereignty’ now resided in the Australian people.^{Footnote 147}

This history also helps support the Court’s doctrinal position that the freedom of political communication does not protect a ‘personal right akin to that created by the First Amendment’ but instead curtails the power of the legislature to limit political speech.^{Footnote 148} The Court describes how the freedom protects the flow of information to people about ‘the functioning of government’ and the ‘policies of political parties and candidates for election’.^{Footnote 149} Lael Weis describes the implication as an attempt to protect a ‘structural feature of the constitutional system’ by scrutinising laws that threaten a ‘system of government that is constitutive of popular sovereignty’.^{Footnote 150} This suggests that American categories and understandings of the freedom of speech are not relevant to Australian jurisprudence. Instead, the High Court should be scrutinising laws for their attempts to undermine the systemic ability of ‘the people’ to hold ‘the body politic’ accountable through voting.^{Footnote 151}

This intellectual history also responds to the challenge put by Adrienne Stone to better describe the ‘kind of public debate’ that should be protected under the implied freedom of political communication.^{Footnote 152} By showing the constitutional value that the drafters placed on the systemic ability of the people to hold parliament to account, this history shows that courts must scrutinise laws that threaten Australia’s system of popular political constitutionalism.^{Footnote 153} This understanding of the role of the courts in upholding Australia’s guarantee of representative democracy is described in Justice Gageler’s extra-curial writing. He has explained that the ‘underlying purpose of the constitution’ is to enlarge the powers of self-government of the people.^{Footnote 154} This form of representative democracy, he explains, requires judicial ‘vigilance’ when popular accountability is inherently weak or endangered.^{Footnote 155} This is clearest where the government burdens the right to vote itself. But this vigilance is also required when law endangers ‘a process of communication by which that political accountability is maintained’.^{Footnote 156} In these cases of vigilance, the Court must ensure that the law is reasonably adapted and appropriate to achieve a compelling end. If it is not, it is committing ‘a fraud on the power’ and the Court must invalidate it.^{Footnote 157}

Two High Court cases are consistent with the enforcement of this systemic constitutional guarantee. In the McCloy case, the plaintiff advanced an American-style individual liberty claim under the implied freedom of political communication to invalidate a cap on donations by property developers. The Court unequivocally rejected this claim, explaining that the implied freedom is not an ‘individual right’.^{Footnote 158} Justice Gageler explains that Australia’s commitment to representative democracy means that a law which limits the ability of wealthy interests to gain ‘unequal access to government based on money’ does not burden political communication but actually improves it by allowing ‘meaningful participation’ for non-wealthy voices in the electoral process.^{Footnote 159} Moreover, French CJ, Kiefel, Bell and Keane JJ stress that the law helps to ensure the ‘[e]quality of opportunity to participate in the exercise of political sovereignty’ which they argue ‘is an aspect of the representative democracy guaranteed by our Constitution’.^{Footnote 160}

In the Brown case, the High Court struck down a Tasmanian anti-protest law because it burdened political speech in a way that was greater than reasonably necessary. The Court reasoned that the Act had broad effects on the system of political communication, largely by ‘extending the areas of its operation, creating further consequences for non-compliance with directions including special offences and heavy penalties’ and, ‘more importantly’ that deterrent is ‘achieved by the uncertainty which surrounds the areas within which the Act applies’.^{Footnote 161} These measures are likely to go far beyond any legitimate purpose and instead ‘deter protest[s] of all kinds’, thus depriving the people of access to political communication that can help them hold parliament to account through the vote.^{Footnote 162}

Other judgments, however, are not consistent with this approach. For instance, in Clubb v Edwards, Justices Kiefel, Bell and Keane refer to the importance of ‘dignity’ and ‘privacy’ to the constitutionally prescribed system of representative democracy.^{Footnote 163} In support, they cite Israeli judge, Aharon Barak, for the idea that ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’.^{Footnote 164} There is no doubt that privacy and dignity are important values in traditional individual rights discourse. But Australia’s constitutionally prescribed system of popular political constitutionalism does not protect individual rights. Instead, it is intended to guarantee a system that allows the people to hold parliament to account. Protecting individual dignity or privacy (or autonomy for that matter) are not important or compelling purposes of such a system.

Finally, the doctrinal test the Court has adapted to understand the implied freedom — structured proportionality — is in tension with this fuller history. If history shows that the purpose of Australian representative democracy is to guarantee a system in which the people can hold the parliament account by voting, why is a doctrinal test taken from the individual rights context being used? In particular, the third and final ‘adequate in the balance’ step of structured proportionality is problematic in a system of political constitutionalism such as Australia. As Justice Brennan stated in Nationwide News Pty Ltd v Wills, the balancing of key interests is better left to Parliament.^{Footnote 165}

Although a comprehensive discussion of the correct test is beyond the scope of this paper, the fuller history suggests that a version of the ‘calibrated’ scrutiny test (suggested by Justices Gageler and Gordon) is more appropriate.^{Footnote 166} In this approach, the Court would closely scrutinise laws that burden core aspects of popular political constitutionalism while giving deference to laws that do not. Those cases involving laws that warrant deference would only require ‘constitutionally permissible’ purposes to be valid.^{Footnote 167} But those cases considering laws that burden core aspects of the system of popular political constitutionalism would warrant higher scrutiny and require the impugned law to be ‘narrowly tailored’ to a ‘compelling’ purpose.

Two recent cases provide examples of how this calibrated scrutiny test could operate. In Ruddick v Commonwealth, the plaintiff challenged 2021 amendments that compelled deregistration of a party that chose a name which duplicates the name of an earlier registered political party.^{Footnote 168} In a 4-3 judgment, the Court upheld the amendments. Calibrated scrutiny supports this outcome. In this case, the impugned law should be subject to searching scrutiny because it impacts the ability of political parties to communicate with voters on the ballot paper — clearly a central aspect of Australian popular political constitutionalism. But it passes this stricter scrutiny because the law has a compelling purpose that is at the core of popular political constitutionalism: reducing voter confusion and therefore improving the ability of the people to make a clear and informed choice about their representatives. Furthermore, the law is narrowly tailored to this compelling purpose: there do not appear to be obvious other ways to avoid voter confusion, and therefore the law improves the clarity and quality of electoral choice and communication on government or political matters.

In Murphy v Electoral Commissioner, the plaintiffs argued that the long-standing practice of closing the electoral rolls 7 days after the issue of the writ was invalid because the Electoral Commission now possessed the technological and administrative capacity to process new enrolments closer to polling day.^{Footnote 169} The impugned provisions had been in place for many years and therefore do not place a significant burden on popular political constitutionalism. As Justices French and Bell argued, this was ‘not a case about a law reducing the extent of the realisation of the constitutional mandate’.^{Footnote 170} Instead, it was a case arguing that ‘the law did not go far enough in the provision of opportunities for enrolment’.^{Footnote 171} Given this, the impugned law only requires a constitutionally permissible purpose. In this case, this is easily found as the cut-off period is important to the ‘the orderly and efficient conduct of elections’.^{Footnote 172}

D The Voting System Cases

This fuller historical account has had more impact on cases where the Court scrutinises laws that burden or reduce the ability of the people to vote. In McGinty, Justice Gummow argued that the Court must scrutinise laws burdening the ability of the people to vote because ‘[t]he architects of the Australian federation shared an expectation that the federal Parliament would embrace what were then advanced ideas of political representation’.^{Footnote 173} This fact, he argued, showed that sections 7 and 24 create a constitutional requirement ‘of ultimate control by the people, exercised by representatives who are elected periodically’.^{Footnote 174}

This history reappeared more strongly in the Roach case, in which the Court invalidated a law that broadly disenfranchised prisoners no matter the severity of the crime or the length of the sentence. Justices Gummow, Kirby and Crennan invalidated the law in part on Australia’s progressive and broad colonial franchise (for its time).^{Footnote 175} They argued that Australia’s distinctive system of representative government with which the framers were ‘most familiar as colonial politicians’ helps to understand the purpose of the Constitution’s guarantee in sections 7 and 24 that representatives be ‘directly chosen by the people’.^{Footnote 176}

The most explicit use of this fuller history is in Rowe v Electoral Commissioner, a case where the High Court struck down a law shortening the period during which voters could enrol to vote after an election writ was issued.^{Footnote 177} In her judgment, Justice Crennan made use of the intellectual history of colonial Australian representative democracy. Justice Crennan had written a Master’s thesis at the University of Melbourne on the influence of Chartism in colonial Victoria.^{Footnote 178} Her judgment draws on this work by describing the ‘British radicalism’ that took hold in the Australian colonies and the strong push for manhood suffrage.^{Footnote 179} She then links these ideas with constitutional provisions aimed at blocking oligarchical mechanisms (plural voting or undemocratic upper houses) that would halt or reverse ‘the tide of democracy’.^{Footnote 180}

In describing this political history, Justice Crennan explicitly relies on the new wave of intellectual history highlighting Australia’s distinctive form of representative democracy. She relies on the work of John Hirst’s The Strange Birth of Colonial Democracy: New South Wales 1848-1884, one of the early books examining the distinctive nature of Australian democracy.^{Footnote 181} She also cites Peter Cochrane’s book Colonial Ambition: Foundations of Australian Democracy, which remembers the democratic ideas of colonial Australia.^{Footnote 182} Finally, she cites John Molony’s Eureka and the Prerogative of the People which describes the role of Chartism in the democratic exceptionalism of colonial-era Australia.^{Footnote 183}

She describes how this historical background provides important context for understanding sections 7 and 24. These provisions, she argues, were directly targeted at blocking attempts to re-establish what she calls ‘oligarchic’ governance. This includes section 7 which guaranteed that the commonwealth upper house (the Senate) would not be an undemocratic body (as it was in many states). It also includes a ban on plural voting in sections 8 and 30, another technique that was used in the colonies (and Britain) to limit democratic governance.^{Footnote 184} Finally, she describes how section 41 tied Commonwealth electoral rolls to the lower house of parliament in each state, the key institution at the centre of the colonial movement towards democracy.^{Footnote 185}

Justice Crennan argues that this structural context makes it clear that sections 7 and 24 were part of a broader movement to ‘mandate a franchise which will result in a democratic representative government’.^{Footnote 186} She then concludes that this constitutional purpose will naturally require the Court to scrutinise laws that burden the vote and therefore threaten the developing concept of representative democracy.^{Footnote 187} This history then supports the doctrinal requirement that Parliament have a ‘substantial reason’ if it limits the ability of people to vote enshrined in past legislation.^{Footnote 188}

Justices Gummow and Bell explicitly adopt Justice Crennan’s historical argument. In addition, they also independently refer to the ‘striking’ development of representative democracy in the Australian colonies and the ‘deep significance’ of the ‘progressive instincts’ of the time in understanding the purpose of sections 7 and 24 of the Australian Constitution.^{Footnote 189} This history shows that ‘“progressive instincts” would animate members of legislative chambers’ when they legislated for a franchise that would ensure representatives ‘chosen by the people’.^{Footnote 190} In fact, they go on to argue that this new history shows that the Constitution was framed on the idea that ‘the body politic would embrace the popular will and bind it to the processes of legislative and executive decision making’.^{Footnote 191}

This use of the fuller intellectual history can and should be used more widely by both claimants and the Court in the voting context. For instance, they could expressly cite Cole v Whitfield and its interpretive method as supporting this implication. In so doing, they would explain how this history provides important context for why Parliament must justify any law that undermines the representative nature of parliament by reducing or burdening the ability of ‘the people’ to hold parliament to account. The Court should also make broader use of this history in justifying why it must strike down laws that ‘impermissibly distort the voting system in a way that would compromise the representative nature of a future Parliament’.^{Footnote 192}

This history of the distinctive role of the people also helps explain and justify the Court’s use of prior electoral legislation as a baseline to determine constitutional validity and shows why it is not ‘radical’ or problematic. Each new law defining the franchise allows ‘the people’ (acting through their parliamentary representatives) to exercise ‘the power of collective self-definition’ in determining the scope of ‘the people’ and therefore a representative parliament.^{Footnote 193} If a new law itself burdens or limits this self-definition process or legislative baseline of ‘the people’, it poses a threat to the ability of ‘the people’ to hold parliament to account and must be justified in court.^{Footnote 194}

This approach is also consistent with political constitutionalism because it means the Court does not itself need to independently determine what a popularly representative parliament is; instead, it simply has to look to pre-existing electoral legislation to determine that question. The Court is therefore not overstepping the bounds of its legitimate authority. Instead, the Court is allowing Parliament to determine who ‘the people’ are through legislation. As Weis explains, it ‘allocates the primary institutional responsibility for defining the incidents of representative democracy’ (in this case, who are the people) to Parliament.^{Footnote 195} ‘Legislative baselines’ in this context are therefore a deferential tool in protecting ‘the people’ from laws that dilute their power to use the vote to hold parliament to account.

Finally, as with the implied freedom, this fuller history suggests that a test of calibrated scrutiny — and not proportionality reasoning — is best suited to judging the constitutionality of laws in the voting context. In this approach, the greater the threat to the system of popular political constitutionalism, the greater scrutiny that should be applied. The outcome in the recent Palmer case would be consistent within this calibrated scrutiny approach.^{Footnote 196} In the case, the plaintiff argued that the Electoral Commission’s practice of publishing the indicative two-candidate preferred count after polls closed in the relevant Division but before the polls closed in all parts of the nation violated sections 7 and 24. The facts showed that there was little evidence that this practice impacted voter choices. Under the calibrated approach, therefore, this practice would be subject to significant deference and only require a constitutionally permissible rationale. In this case, the Electoral Commission adopted the practice to ensure that the public would know ‘the result of the count as it becomes available’.^{Footnote 197} This rationale is constitutionally permissible and therefore the challenge must fail.

The calibrated scrutiny test also makes it clear why a voter identification law should face searching judicial scrutiny.^{Footnote 198} This kind of ‘voter ID’ law would introduce a new requirement for voting that would make it difficult for some to vote, particularly those without a fixed residence.^{Footnote 199} It would therefore threaten the system of popular political constitutionalism by making it difficult for some Australians to vote. In order to avoid invalidation, therefore, the Commonwealth would need to argue that this identification requirement is narrowly tailored to a compelling purpose.

A The Standard Account of Australia’s Constitutional System and Constitutional Discourse

The orthodox view that Australia has a federal version of parliamentary sovereignty has long played a prominent role in Australian constitutional discourse. It has been particularly influential in opposing a constitutional bill of rights and advocating for a statutory bill of rights that will protect rights but also ensure respect for ‘parliamentary sovereignty’. For instance, the design of Victoria’s statutory bill of rights (called the Charter of Human Rights and Responsibilities Act 2006 (Vic)) was shaped by a ‘desire to retain parliamentary sovereignty’.^{Footnote 204} In Queensland, the explanatory notes for its Human Rights Act also sought to ensure that the Parliament would ‘remain sovereign’.^{Footnote 205}

Most recently, this common view of sovereignty in Australia’s constitutional system emerged in the 2023 referendum debate about a First Nations Voice to Parliament. This Voice proposal emerged in 2017, after a series of regional dialogues convened around Australia culminated in the Uluru Statement from the Heart. This Statement requested ‘structural’ solutions to the ongoing failure of Australian constitutional democracy to incorporate the views of First Australians. Amongst these was the ‘establishment of a First Nations Voice enshrined in the Constitution’. Although its exact powers and makeup were to be legislated in the event of a successful referendum result, this Voice to Parliament was constitutionally described as giving First Australians the ability to make ‘representations [to parliament and the executive] on matters relating to Aboriginal and Torres Strait Islander Peoples’.^{Footnote 206}

Both sides of the debate about a First Nations Voice to Parliament strained to place this proposed institution in the orthodox view of Australia’s constitutional system. Those in favour of the proposal situated the Voice to Parliament in the context of parliamentary sovereignty. For instance, the Law Council of Australia has argued that a Voice to Parliament is ‘consistent with parliamentary sovereignty’.^{Footnote 207} Those in opposition to a Voice institution described it as a threat to Australian parliamentary sovereignty. Then-Prime Minister Malcolm Turnbull argued that it proposed a ‘radical change to our constitution’s representative institutions’.^{Footnote 208} Others argued that it poses a ‘unprecedented threat’ to Australia’s representative institutions.^{Footnote 209} Finally, a common argument in the referendum debate was that a Voice to Parliament would ‘permanently divide’ Australia and therefore threaten its unity.^{Footnote 210}

B Australia’s Distinctive Constitutional System

The fuller history of Australian constitutional democracy challenges a key assumption underpinning this debate. Most importantly, it shows that, from the very beginning, the Australian Constitution broke with British-style parliamentary sovereignty. The Australian Constitution was instead a key moment in the formation of a distinctive Australian system which guarantees that the plural people — currently understood as both the people of the nation and the people of the states — have a direct role in choosing their representatives, breaking legislative deadlocks and making constitutional law.

This system is visible both before and after federation. Prior to federation and influenced by Chartist ideology, colonial-era Australians developed a number of innovations that expanded the role of the people. These included the secret ballot, the elimination of property requirements (for many lower houses) and (in South Australia) giving women the right to vote (in 1894). As described in part 3 above, the Commonwealth Constitution entrenched this system by constitutionalising many of these mechanisms as well as introducing a referendum and double dissolution provision. Although these mechanisms might seem natural to us now, they were radical for their time. Furthermore, they were structural guarantees of popular involvement in politics, rather than rights guarantees secured through litigation.

Since then, this distinctive constitutional system has continued to evolve.^{Footnote 211} Four of the eight successful constitutional amendments to the Australian Constitution have involved giving the people more structural power in Australian constitutional democracy.^{Footnote 212} For instance, in 1977, s 15 of the Constitution was amended to ensure that if a casual vacancy occurs in the Senate, the state parliament must choose a replacement who is from the same political party as the previous ‘senator chosen by the people of a State’.^{Footnote 213} The underlying purpose was to guarantee that the choice of ‘the people of a state’ not be frustrated by the representatives in state parliament appointing a replacement from another political party. Another constitutional amendment (from 1977) amended s 128 of the Constitution to give the people who lived in the territories the ability to vote in constitutional referendums.^{Footnote 214} The chief goal was to ensure that a broader range of ‘the people’ would participate in the referendum process.

This system of popular political constitutionalism has also evolved at the sub-constitutional level. For instance, the electoral franchise has expanded over time to give a broader section of the people the power to control parliament through the vote. This includes the inclusion of non-white Australians in the definition of the people by expanding the franchise. Moreover, voting was made compulsory in most elections in a system overseen by a powerful Australian Electoral Commission to avoid problems of voter apathy and unrepresentative parliaments. Finally, proportional representative voting for the Senate was introduced in 1948. This drew in part on a longer tradition of argument dating back to federation that recognises the value of giving representation to groups that might be silenced in a more majoritarian system.^{Footnote 215} For instance, Patrick Glynn introduced a petition at the Melbourne session of the Constitutional Convention that proportional representation in the Senate was vital to ensure that ‘the minority should not be absolutely silenced’.^{Footnote 216}

These innovations now seem uncontroversial. But, in many cases, they were radical for their time. For instance, compulsory voting was highly controversial when it was first introduced and required large-scale state intervention.^{Footnote 217} These innovations are also distinctive. Very few countries in the world have compulsory voting and some that do are abandoning this practice.^{Footnote 218} Moreover, the cultural importance placed on voting in Australia is distinctive amongst democracies.^{Footnote 219}

C Implications for Constitutional Reform and First Australian Constitutional Recognition

This fuller historical account therefore shows that Australia’s distinctive constitution system involves structural mechanisms that guarantee the ability of a plural people to participate in Australia’s parliamentary centred form of political constitutionalism. This system does not guarantee the role of the people through individual rights protection. It therefore stands in tension with an American-style constitutional bill of rights. Instead, the constitution provides for a systemic guarantee that the plural people be able to participate in Australian representative and responsible government.

Constitutional recognition for First Australians is an important step in more fully realising this system because it remedies the exclusion of First Australians from the plural Australian people. As described above, Australia has long had a plural idea of ‘the people’ in which the Constitution recognises not just the national people of the Commonwealth but also the people of the states. This form of democracy therefore goes beyond simple majoritarianism towards a more inclusive form of democracy that recognises a plural conception of shared sovereignty. As Dylan Lino argues, federalism recognises a degree of autonomy for the people of the states while still maintaining an overarching state exercising shared rule.^{Footnote 220} This inclusiveness in turn helps to ensure greater trust in Australian democracy.

At federation, this plural concept of the people recognised that the people of the Commonwealth and the people of the states were distinct political communities that should have a guaranteed role in holding parliament to account. But it did not accord First Australians — a distinct people that also predated settlement — any structural ability to participate in this new constitutional system. Instead, despite the provisions in chapter 1 of the Constitution seeking to protect a broad democratic franchise, section 127 of the Constitution explicitly stated that First Australians were not to be counted ‘in reckoning the numbers of the people of the Commonwealth’. In 1902, the Franchise Act (Cth) gave women the right to vote and stand for Parliament. It, however, explicitly excluded ‘aboriginal native[s] of Australia, Africa, Asia, or the Islands of the Pacific except New Zealand … unless able to vote under Section 41’.^{Footnote 221}

It would take another 60 years for the Parliament to include First Australians in the legislative definition of the people that participated in Australian representative democracy.^{Footnote 222} Five years later, the constitutional reform process of 1967 took another partial step in remedying the racial exclusion in Australia’s commitment to representative democracy. This reform improved the position of First Australians by deleting section 127 and giving the Commonwealth power to make special laws regarding First Australians under the race power provision. In 1983, Commonwealth law finally made enrolling to vote at federal elections compulsory for First Australians.^{Footnote 223}

These reforms, however, still do not remedy the constitutional exclusion of First Australians, a people that had a long and close relationship with the land for centuries predating Australian colonialism. Constitutional recognition must remedy this constitutional exclusion. The plural nature of the Australian people can allow First Australians to exercise sovereignty as a people but in a way that is broadly compatible within the Australian settler-nation state. A First Nations Voice to Parliament was aimed directly at this structural exclusion. It constitutionally guaranteed that First Australians can directly participate in policy-making that directly impacts them. As Megan Davis argued, this inclusion ‘mak[es] space for the first peoples to play an active role in the nation’.^{Footnote 224} Although this proposal was rejected by the Australian people at referendum, it is important not to abandon the project of First Nations constitutional recognition.

In the wake of the failure of the Voice to Parliament proposal, meaningful constitutional recognition must take real steps towards realising the promise of the special role of the plural Australian people in the Australian constitutional order. Although the precise details of this recognition are beyond the scope of this paper, this recognition must be more than symbolic and work to overcome the ‘multiple ethical lapses of the settled state’ by repairing a central flaw in the definition of the Australian people.^{Footnote 225}

This constitutional reform will also help to strengthen the trust of First Australians in Australian democracy. The failure to recognise First Australians in the Constitution has led to decades of paternalistic policy-making that has excluded them from shaping policies that impact their everyday life. This exclusion has had serious adverse consequences.^{Footnote 226} Amongst these include the fact that First Australians face disproportionately high levels of incarceration and are far more likely to live in poverty than other Australians.^{Footnote 227} It also includes the fact that the health and life expectancy of First Australians lag well behind the average for non-First Australians.^{Footnote 228} Meaningful constitutional recognition can help to close the gap between First Australians and the general Australian population and therefore help to secure greater trust in government.