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6 March 2022

In the previous article, we explored the term lengths of MPs and Senators, and how they represent the people of Australia and the states and self-governing territories, respectively. With an understanding of that, we can now discuss the election process itself, including the voting systems used by Australia. However, before that, it is worthwhile to highlight the other ways that the elections can be called, aside from the end of a term for the House of Representatives.

In Article #2, I noted that the Governor-General had another power in Chapter I, Part I of the Constitution. That power is found in Section 5, and it allows the Governor-General to dissolve Parliament. There are several ways that the Governor-General can dissolve Parliament. Firstly, as we discussed in Article #3, Section 28 grants the Governor-General the power to call an early election, before the three-year term of the House of Representatives has ended. This is usually done on the advice of the Prime Minister, and is known as a snap election. Often, it happens because the government believes that they can take advantage of a particular event to increase their numbers in both houses of Parliament, although that can backfire. The other way Section 5 comes into play is when there is a double dissolution. This is a complex process found in Section 57, although it is not referred to as a double dissolution in that section. Section 57 is one of the longest sections of the Constitution, because of the complexity of this process. Under this section, the Senate must either outright reject a bill passed by the House of Representatives or must agree to it with amendments that the House of Representatives does not agree to. Then, if at least three months later the houses cannot agree, in the words of Section 57 “the Governor-General may dissolve the Senate and House of Representatives simultaneously.” An election is then called, with all seats in the upper house being up for election. As with snap elections, although this is theoretically done by the Governor-General, it is usually done on the advice of the Prime Minister. Both houses are being dissolved fully, hence the name ‘double dissolution.’ The last time this happened was in 2016. Half of the Senators elected in a double dissolution election will only have a three-year term, to ensure that the half-Senate elections continue, under Section 13. However, if the bill did not pass the second time, but it was within six months of the end of a term for the House of Representatives, this Section 57 will not allow for a double dissolution.

The alternative to a double dissolution is to call a joint session of Parliament, where both houses are called by the Governor-General, on the advice of the Prime Minister, to meet together and pass the bill jointly, at which point it will then be given to the Governor-General for royal assent. This is also covered in Section 57. It has only ever been used once, in 1974, after the double dissolution election failed to resolve the problem of bills not passing in the Senate. In the Senate, the Liberal-Country coalition and Labor government each held 29 seats, with the last two held by an independent and a minor party, who voted in such a way that the bills could not pass. A joint session allowed Labor to take advantage of their slim majority in the House of Representatives to pass the disputed bills with 95 votes, against the 90 of the Liberal-Country coalition and 2 Senate crossbenchers.

Now, onto the election process. Last time, we looked at how seats in the House of Representatives are determined. Seats in the House of Representatives are split between the states and self-governing territories based on population, while each state has an equal number of seats in the Senate, 12, and each self-governing territory has 2, to ensure that their interests are equally represented. The electoral boundaries for the electorates in the House of Representatives are determined by the Australian Electoral Commission. At almost every election, all House of Representatives seats, half of the States’ Senate seats, and all of the self-governing territories’ seats, are up for election. The exception is that all Senate seats are up for election at a double dissolution.

Elections commence with what is referred to as the ‘issuing of the writs of election.’ Writs date back to medieval Britain, where they were orders written by or on the behalf of the monarch. Section 12 of the Constitution states that the Governors of the states issue the writs for the election of Senators from that state. Governors are the state-level equivalent of the Governor-General. Section 32 states that the Governor-General must issue the writs for elections for the House of Representatives. Both of these provisions require the writs to be issued within ten days from the “proclamation of a dissolution” of Parliament, such as in cases of double dissolutions, snap elections, and Senate elections. Section 32 also allows for the issuing of writs within ten days of the expiry of a term of the House of Representatives. Generally, writs are issued at the same time as an election is called. Although not written in the Constitution, a constitutional convention has developed that when the writs are issued for the House of Representatives, they will generally be issued simultaneously for a Senate election. A constitutional convention is basically an unwritten constitutional rule. In Australia’s federal system, territories receive less autonomy than states, and any powers that they do have are given to them by the Australian government through legislation. Therefore, they don’t have Governors, so the Governor-General issues the writs for the Australian Capital Territory and Northern Territory, according to Section 151 of the Commonwealth Electoral Act 1918 (Cth) (‘CEA‘).

Section 152(1) of the CEA states that the writs must contain the dates for “the close of the Rolls,” end of the nomination period, end of the voting period, and when the writs must be returned by. ‘Rolls’ refers to the electoral rolls, which contain the name of every registered voter. Under Section 155, citizens over the age of 18, the voting age in Australia, must be enrolled within 7 days of the issue of writs. The next date is the date of nomination, which is discussed in Section 156(1). People who want to run in the election must nominate themselves between 10 and 27 days after the issuing of writs. Parties have their own rules and conventions for choosing their nominees when two or more people want to stand for election in the same seat in either House of Parliament. The date of polling must be between 23 and 31 days after the date of nomination, according to Section 157, and Section 158 requires the date of polling to be a Saturday. Finally, Section 160 says that the date for the return of the writ is fixed at no more than 100 days after the issue of the writ. What this means is that the results of the election must be determined within 100 days of when the election was called. Therefore, an election lasts for between 33 and 68 days. This is much shorter than elections in countries like America. For example. the 2016 election, which was also a double dissolution election, lasted for 56 days, the longest since 1969.

Australian elections use the preferential voting system, as opposed to the first-past-the-post system used in Canada, Britain, and America. When voting for a House of Representatives seat, Australian voters must number all boxes on the ballot paper, rather than just ticking the box for one candidate. Candidates are then awarded votes based on what number the voter gave them. An example of how this looks on the ballot paper is included below.

Voting in the House of Representatives - Australian Electoral Commission
Australian Electoral Commission

The Senate ballot paper is much longer, as many more parties run for the Senate. This is because, each State has 6 seats up for election, or 12 at a double dissolution election. This means that, instead of needing a majority of votes like in the House of Representatives, a candidate only needs 16.67% of the votes, or 8.33% at a double dissolution election. Due to a combination of the number of seats and preferential voting, it is much easier for minor parties to win seats in the Senate than it is in countries like America. Voting is done either above the line or below the line. Voting above the line is similar to voting in the House of Representatives, except instead of marking every box, at least 6 need to be marked. These votes go to the party, rather than individual candidates, and the party determines which of its candidates get the votes.

Voting in the Senate - Australian Electoral Commission
Australian Electoral Commission

If a voter decides to vote below the line, they can vote for individual candidates from each party, meaning that instead of the party determining which of their candidates the votes go to, the voters get to determine that themselves. At least 12 boxes must be numbered.

Voting in the Senate - Australian Electoral Commission
Australian Electoral Commission

In Australia, voting in elections is mandatory for everyone aged 18 and older. This is covered in Section 101 of the CEA. Subsection (6) says that the fine cannot be more than one penalty unit. One penalty unit is $222. Currently, the fine for not voting at a federal election is $20, and the Australian Electoral Committee considers it to be an “administrative penalty.” The penalty is higher at a state level.

To prevent fraud, Section 232 of the CEA states that each voter must have their name crossed off the electoral roll, before they vote. This roll can be either paper or electronic. When it is a paper roll, at the end of the day of voting, the rolls will be cross-referenced, to see if someone has voted at multiple polling booths. If it is electronic, the voter’s name is crossed off on the system’s database, and they cannot vote at any other polling booths. Because Section 233 states that votes are private, it is impossible to determine who a fraudulent voter has voted for. Instead, if enough fraudulent votes are cast, that particular election is declared invalid, and a new one is called specifically for that seat.

In this article, we have looked at how Parliament can be dissolved by the Governor-General without a term in the House of Representatives expiring. We then discussed the electoral process, up to the casting of votes. Next time, we will explore the process after voting day, and the forming of a government.

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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