Guaranteeing Voting Rights in the Constitution

by John Pyke, Queensland candidate for the Constitutional Convention

To include the appropriate guarantees of the rights to vote and run for office will involve re-drafting nearly all of Chapter 1, Part 4:

Chapter 1, Part IV
Both Houses of Parliament

41. Rights of citizens to contest elections and to vote.
Subject to the provisions of this Part, every Australian citizen of the age of 18 years or over and normally resident in Australia has the right to enrol on an electoral roll for an area where he or she normally resides, and, if enrolled, to vote at elections for both Houses of the Parliament of the Commonwealth, and to contest such elections as a candidate for election.
[This incorporates the matters previously covered by sections 8, 16, 30 and 34 (but left there under the control of Parliament), as well as the illusory guarantee apparently provided by the current section 41.]

42.Disqualification of electors.
The Parliament may make laws providing for the disqualification of persons as electors on the grounds of incapacity to exercise the right to vote, or current imprisonment for a serious crime.
[Existing section 42 (Oath of allegiance), after minimal editing, can be moved down to section 47, if the existing sec 47 is moved to 45 as suggested. This new section is necessary as a qualifier of section 41.]

[Keep existing section 43, Member of one House ineligible for other.]

44. Other grounds of disqualification for membership of Parliament.
The Parliament may make laws, consistent with Australia's status as a democratic republic, providing the grounds on which a person shall be disqualified from contesting an election for the Parliament or from sitting as a member of Parliament, and providing penalties for those who continue to sit as a member while disqualified. No law shall retrospectively make eligible a person who has sat as a member while disqualified.
[This replaces the existing sections 44 and 45, which prescribe some rigid grounds of disqualification, and 46, which gives Parliament power to provide a penalty for sitting while disqualified. In my view, the emphasis in the Constitution ought to be on the right to stand for election, and the disqualifications ought to be minimal.]

[Move existing s.47 (Disputed returns) to s.45, for a better logical flow of provisions, and update text.]

46. Irregularities not to affect validity of Acts.
No Act of the Parliament shall be invalid on the ground that a member voted for its passage while disqualified, or because of any irregularity in the election of members of the Parliament.
[This merely re-states the common law on this point - but it seems a good idea to have it stated expressly to discourage crackpot litigation. The existing s. 46 (penalty for sitting while disqualified) is rolled up into my suggested s. 44, above.]

Section 47 would then be an amended version of the existing section 42:-

47. Oath or affirmation of office. Every member of Parliament shall, before taking his or her seat, make and subscribe before the President, or some person authorised by the President, an oath or affirmation in the form set forth in the Schedule to this Constitution.

Sections 48 and 50, and possibly also 49, also should be amended - see Limits on MP's Powers to Aggrandise Themselves.

The oath and affirmation will also need amendment. The forms below are based on the proposed affirmation suggested for the President in the other drafts. To me they also seem more appropriate for members of Parliament than the mere adaptation of the current oath of allegiance, in which members swear allegiance to the Queen, but make no commitment as to the fulfilment of their duties:-

Schedule

OATH

I, A.B., do swear that I will maintain the Constitution and uphold the laws, that I will fulfil my duties as [President/Senator/member of the House of Representatives] faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Australia.
SO HELP ME GOD!

AFFIRMATION

I, A.B., do solemnly and sincerely promise and declare that I will maintain the Constitution and uphold the laws, that I will fulfil my duties as [President/Senator/member of the House of Representatives] faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Australia.

Back to: Constitutional Alterations for a Real Republic

Written by John Pyke, 5 November 1997