In the last few years, the High Court has constitionalized a number of aspects of our electoral system and franchise. In this post, Associate Professor John Gava looks at the implications this may have for compulsory voting.

Let’s conduct a thought experiment. Imagine the Commonwealth Parliament passing a law that takes away the right of women to vote in Commonwealth elections. Most constitutional lawyers, I suspect, would agree that the High Court would not let this stand although the precise doctrinal formulation of the reasoning condemning such a law would be a matter of some speculation. What if the same Parliament instead took away the voting rights of Indigenous Australians? I imagine that most constitutional lawyers would agree that this too would fall foul of the High Court. Ok, a third thought experiment. What if the Parliament removed the secret ballot from Commonwealth voting legislation? I guess here that most constitutional lawyers would also agree that the High Court would not allow this – although perhaps there might be a little more hesitation on this one.

Let’s change the scenario one more time. Now the Commonwealth legislates to remove compulsory voting. My guess here is that most constitutional lawyers would say that this would probably pass muster in the High Court. I want to argue that if the High Court would invalidate the law in the first three scenarios it should do the same if compulsory voting were removed.

The first three scenarios are really examples of constitutionalization. The first two, the voting rights of women and Indigenous Australians, are examples of constitutionalization after the formation of the Commonwealth Constitution. The last of the three, the secret ballot, is probably an example of constitutionalization by adoption of unwritten practice existing before 1901. There is nothing new in unwritten practices which exist before the creation of our Constitution being incorporated into that constitution. After all the Constitution has adopted judicial review, indeed, the very notion of the judiciary, from the Anglo-American constitutional tradition and the common law. And the reality of our executive government, the office of Prime Minister and other ministers, is another series of unwritten practices that have been woven into our constitution.   In other words, constitutionalization is a normal thing. The adoption of unwritten practices that came into being after 1901 might be considered more contentious but, as suggested by my thought experiments, I would be surprised if any constitutional lawyer in Australia would agree that the High Court would condone Commonwealth legislation removing voting rights for women or Indigenous Australians and, probably, the secret ballot. These are just too enshrined in our constitutional thought and practice to be anything other than part of the fabric of the Australian Constitution.

So, should the constitutionalization of compulsory voting be treated as just another example of constitutionalization of unwritten practice in line with my examples of voting rights for women and Indigenous Australians, or the secret ballot?

It might be argued that the first three examples deal with individual rights while compulsory voting does not. It is undoubtedly true that they do deal with individual rights. But they also deal with communal rights – the right to have a polity where all people get to vote (including women and Indigenous Australians) and where the vote is exercised in a manner that is commonly accepted as being fundamental to a free choice in an election (the secret ballot). In other words, it should be considered a constitutional right in Australia to be part of a political system where all Australians, irrespective of sex, ethnicity, religion, etc, are guaranteed a right to vote and where such voting takes place in secret.

I would argue that our political and constitutional history similarly enshrine a constitutional right to vote in a political system where everyone votes: where the constitutional requirement that the parliament be chosen by “chosen by the people” means chosen by all the people and not just the 50% or 60% or whatever percentage of the voting population that can be bothered to vote in a non-compulsory system. Couldn’t it be argued that it is also a communal value to have all adult Australians voting in Commonwealth elections, that this is a value for everyone and thus an individual right for all?

Australia’s political and constitutional history is inextricably bound up with compulsory voting since its introduction in state voting in Queensland in 1915 and federally in 1924. It is difficult to imagine, for example, how the constitutional crisis of 1975 would have turned out if the election of December, 1975 which swept out the Whitlam government had been held under voluntary voting. Whatever one’s views of the merits of the Whitlam government, the actions of the Liberal and Country parties of the time, of Sir John Kerr’s decision and the involvement of Sir Garfield Barwick and Sir Anthony Mason in this crisis, the fact that all Australians of voting age were given both the right and duty to vote in the ensuing election must have worked to help resolve this crisis. It is not implausible to believe, I would argue, that one of the reasons that Australia has had such a stable constitutional and political history since compulsory voting was introduced is the very fact of compulsory voting. The acceptance of women’s and Indigenous voting rights has only worked to reinforce this effect.

The advantages of compulsory voting go beyond enhancing stability, however. In general terms it can also be argued that compulsory voting has worked to limit the extent to which governments attempt to “bribe” the electorate. It is far harder, after all, to bribe 100% of the voting public than it is to bribe 50% or 60% of the same group.  The rent-seeking behaviour which is endemic in all countries has been reduced in Australia by ensuring that everyone is given both the right and duty to vote in elections and, to use contemporary language, “own” the results.

I think that it is a general rule that the more the people are involved in their own governance the better off they are, politically, economically and socially. Compulsory voting is an Australian manifestation of this rule and is now part of our constitutional fabric and should be recognised as such.

Dr John Gava is an Associate Professor at the Adelaide Law School, University of Adelaide.