Direct Democracy and Electoral Law: Final Revision and Exam Review

Direct Democracy and the Double Majority under Section 128

• The Double Majority Requirement: According to $\text{Section 128}$ of the Australian Constitution, for a referendum to pass, it must achieve a "double majority." This is defined as:

  • A majority of electors voting globally (nationally) must approve the proposed law.

  • A majority of electors in a majority of states (at least four out of six) must approve the proposed law.

• The Informal/Spoiled Vote Controversy: A critical legal question arises regarding whether informal or spoiled ballots are included in the denominator when calculating the national majority.

  • Hypothetical Scenario: In a republic referendum, the "Yes" vote is $7,000,000$, the "No" vote is $6,500,000$, and $600,000$ ballots are spoiled (blank, obscenities, or unclear). Total ballots cast reach $14,100,000$.

  • The Legal Issue: Is the required majority half of $13,500,000$ (valid votes) or half of $14,100,000$ (all ballots cast)?

• Arguments for Excluding Spoiled Ballots:

  • Literal Meaning: The term "majority of the electors voting approve" implies that those who fail to mark the ballot as prescribed by Parliament have not effectively "voted."

  • Statutory Prescription: Parliament dictates how a valid vote is expressed. If a choice is not clearly expressed, the act of voting has not been completed.

  • Consequentialist Argument: Including spoiled votes in the total makes them count effectively as "No" votes, adding an unnecessary extra hurdle to constitutional change.

• Arguments for Including Spoiled Ballots:

  • Compulsory Participation: Since electors are crossed off the roll and have submitted a ballot, they have fulfilled their legal duty to "turn out" under the Electoral Act.

  • Constitutional Threshold: Some argue that because a referendum changes the fundamental law, the threshold should be high. Abstainers or those who intentionally spoil their ballots might be seen as "not approving" the law.

• Judicial Status: This specific issue has never been decided by the High Court of Australia because referendums are rarely close enough for $600,000$ votes to determine the outcome. Calculating a few hundred thousand votes in a pool of millions makes a legal challenge numerically unlikely.

Designing Referendum Questions and Deliberative Democracy

• Ballot Paper Question Styles:

  • The Bland Approach: Using a strictly technical title, such as "A proposed law: To alter the Constitution to establish an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?"

  • The Informative Approach: Providing a slightly longer summary that includes extra details, such as "advisory powers only" or "guaranteed voice."

• Pros and Cons of Informative Questions:

  • Pros: Informative questions act as a "trigger" for electors who may not have read the full bill. It provides a small moment of deliberation at the polling booth and can counter misinformation by stating facts (e.g., that it is advisory only).

  • Cons: Any information included or omitted can be seen as "tilting" the result or using rhetoric (e.g., the word "guaranteed" might be seen as emotive).

• Deliberation in Referendums vs. Elections:

  • Elections: Often viewed as alienating or partisan because they involve electing representatives to act on the voter's behalf.

  • Referendums: Invite the voter to decide directly on the substance of the law. They are inherently issue-focused and can be led by non-politicians.

  • Modern Challenges: The lack of "truth in advertising" laws and the rise of complex media environments make reaching a truly deliberative state difficult.

Recent Legal Developments and Case Law

• Hopper v Victoria (High Court Decision):

  • This case struck down Victorian political funding laws regarding expenditure limits.

  • The Issue: Victoria introduced donation limits but allowed established parties (Labor and Liberal) to keep "legacy accounts" (money built up over decades). Smaller parties argued this was an unfair advantage.

  • The Ruling: The High Court applied the implied freedom of political communication (citing $Babbitt's$ case). They ruled the system created an unjustifiable advantage for major players and struck down the entire integrated system rather than just severing one part.

• Queensland Electoral Act Reforms (LNP Government):

  • Developer Donations: The ban on donations from property developers (previously modeled on New South Wales) has been repealed.

  • Caps and Thresholds: Donation caps have been raised, and the disclosure threshold (the amount at which a donation must be made public) has been increased.

  • Optional Preferential Voting (OPV): The government is considering returning to OPV. While academics argue it is fairer (allowing voters the "choice not to choose"), political parties monitor its impact on preference flows (e.g., how One Nation or Greens preferences affect major party outcomes).

• Freedom of Political Communication and Hate Groups:

  • A High Court challenge is pending regarding the banning of specific protest slogans (e.g., "From the River to the Sea") and the declaration of certain groups (e.g., neo-Nazi organizations) as prohibited hate groups.

  • The court will determine if these bans are a justifiable limit on the implied freedom of political communication to prevent vitriolic or racialist discourse.

Exam Structure and Preparation

• Format:

  • Total Marks: $60$

  • Duration: $2$ hours plus $10$ minutes planning time.

  • Question 1 (20 Marks): Essay with an internal choice.

  • Question 2 (20 Marks): Hypothetical legal problem requiring advice.

  • Question 3 (20 Marks): Essay style, two parts, no choice.

• Scope of Content:

  • Included: Week 1 (Sources of law, theories, and purposes), and Weeks 4 through 12.

  • Excluded: Weeks 2 and 3 (Parliament as an institution, parliamentary privilege). Specific assignment topics (e.g., voting age, constitutionalizing one-person-one-value) will not be re-examined in a way that provides an unfair advantage.

• Purposive Arguments for Essays: When critiquing law, use the following normative criteria:

  • Integrity/Accountability: Transparency of funding.

  • Political Freedom: The ability to associate and communicate.

  • Political Equality: Creating an "equality of arms" in funding.

  • Deliberation: The quality of public debate.

  • Workability/Practicality: Costs and administrative ease.

Exam Style Question 1: Political Finance Reform Analysis

• Proposal A: Lowering the Disclosure Threshold to $100$:

  • Current Law: The threshold is approximately $17,300$ (adjusting to roughly $5,000$ in some jurisdictions).

  • Critique: A threshold of $100$ (roughly $2$ per week) is too low to buy influence. It creates an "avalanche of information" that makes transparency less useful and may "chill" the political participation of sensitive individuals (e.g., public servants).

  • Constitutionality: Likely unconstitutional as it is disproportionate and burdens political communication without a strong justificatory link to preventing corruption.

• Proposal B: Public Funding at $2\%$ Threshold and $10$ per Vote:

  • Current Law: Threshold for funding is $4\%$, and the rate is approximately $5$ per vote.

  • Critique: Lowering the threshold to $2\%$ helps minor parties and independents who lack access to private capital. However, it increases costs to "consolidated revenue" and might encourage "frivolous" candidates running for profit.

Exam Style Question 2: Hypothetical By-Election Crisis (Division of Trotter)

• Issue 1: Non-Registration of the Fatter Party:

  • The Electoral Commission cannot register a party during an election period. Administrative delays are not a legal ground to challenge the current election; they are matters for parliamentary committees.

• Issue 2: Misleading Early Voting Information (Section 329):

  • The ALP incorrectly stated there was only one early voting site. This is a potential breach of $\text{Section 329}$ (misleading casting of a vote). However, it is unlikely to have affected the result given compulsory turnout and the availability of official voting information.

• Issue 3: Electoral Bribery (Section 326) and Coffee Mugs:

  • The ALP gave away $400$ coffee mugs worth $15$ each.

  • Legal Test: Does this constitute property given with intent to influence? While $15$ is not "de minimis" (like a book of matches), it is often defended as promotional advertising material rather than a corrupt inducement.

• Issue 4: Unauthorised "Put ALP Last" Leaflets:

  • They were unauthorized (a clear breach) and used Green colors to mislead voters on preferences (a $\text{Section 329}$ breach).

  • Impact on Outcome: With a margin of only $200$ votes and $7,000$ leaflets distributed, this is a strong ground for a petition to the Court of Disputed Returns to void the election.

• Issue 5: Foreign Donations (Section 302):

  • The Greens received a gift from a foreign bank account. This is a direct violation of foreign gift laws. The money must be disgorged (paid to the Commonwealth), and penalties apply.

• Issue 6: Candidate Qualification (Section 44(i)):

  • Betty Blowers (LNP) has a New Zealand mother. Under dual citizenship laws ($Barnaby Joyce$ case, $Sue v Hill$), she may be a citizen of a "foreign power."

  • Consequence: If she did not renounce her NZ citizenship before nominating, she is disqualified. This results in a fresh election/by-election.

Questions & Discussion

• Student Question: Is the $4\%$ threshold for funding only for votes past that mark, or for all votes?

• Lecturer Response: If you pass the $4\%$ threshold, you get funding for all your votes, not just the amount above the threshold. It is a reimbursement system; you must have spent as much as you are claiming.

• Student Question: Why did the LNP reconsider Optional Preferential Voting?

• Lecturer Response: They previously thought it helped them because Labor depends on Green preferences. However, the rise of One Nation on the right has made them worry that Optional Preferential Voting might lead their own potential preferences to "exhaust" rather than flow back to the LNP.

• Student Discussion on Section 329 (Misleading Conduct): The class debated whether misleading someone about where to vote is as serious as misleading them about how to mark the paper. The consensus was that while it is a breach of the mechanics of voting, it rarely impacts the final seat count unless the misinformation is extreme.