The Core of the Australian Constitutional People - 'The People' as 'The Electors'
University of New South Wales Law Journal, Vol. 39, No. 1, pp. 421-449, 2016
30 Pages Posted: 28 Apr 2016
Date Written: April 2016
Questions of membership of the Australian constitutional community are coming to the fore of legal, political and constitutional debates related to both proposed amendments to the Australian Constitution to ‘recognise’ Indigenous Australians and changes to Australian citizenship legislation which extend the bases of citizenship revocation. In this article, I focus on constitutional membership by interrogating the relationship between ‘the people’ and ‘electors’, as seen in the text of the Constitution. That text creates a relationship between these categories, supporting a predominantly democratic or political conception of the Australian constitutional community. That conception not only places the Australian ‘people’ within a recognised category in the international literature regarding constitutional identity, but also has real legal effect by imposing limitations on the legislative power of the federal Parliament.
In Part II, I address the political roles of ‘the people’, acting through electors, which can be seen in the constitutional text – the historical involvement of ‘the people’ in the making of the Constitution, and the ongoing powers of ‘the people’ in the structures of representative government under the Constitution. ‘The people’ and ‘electors’ are not identical concepts but the case law of the High Court is consistent with Chief Justice French’s assertion that the two groups have converged. One indicator of the broadening of the electors group to include more of ‘the people’ is the position of women in the current case law, compared to their position at Federation.
Some of the text relating to the federal franchise and representation in Parliament was influenced by considerations of gender. In Part III, I consider the emergence of women as part of ‘the people’. The Court’s explication of the text, whose form was influenced by a concern for the protection of (eligible) women’s membership of the political people, tells us little about the ongoing membership of women. Instead, the reasoning directs us to look at what the Parliament has done with respect to the federal franchise, and how the Constitution is understood in that context.
In Part IV, I turn to the High Court case law regarding the federal franchise. The Court conceives of the electors as a subset of ‘the people’ and the relationship between those groups has serious jurisprudential weight, in the sense that it limits legislative power. Specifically, the Parliament cannot reduce the now almost universal adult citizen franchise without sufficient justification. Therefore, the historically precarious voting rights of groups, including women, are now protected. The identification of who are the relevant ‘electors’ may have a normative element so the general principle of a broad franchise is tempered by consideration of legitimate exclusion of persons who demonstrate a rejection of community standards. The reasoning adopted by the Court in protecting the now broad franchise confirms that ‘the people’ are to be considered as a collective and that their will determines to a significant extent their own constitutional identity, which I call the third constitutive function of ‘the people’ – a power of collective self-definition.
In Part V, I conclude that the reasoning of the Court which leads to this third constitutive power of ‘the people’ affects the scope of the Parliament’s power regarding membership of the constitutional ‘people’.
Keywords: Constitutional identity, the people, the electors, Australian Constitution
JEL Classification: K10, K30
Suggested Citation: Suggested Citation