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Public Law Assignment: Voters' Rights in Western Australian Parliament


Task: Public Law Assignment Instructions: After consultation with the Western Australia Electoral Commission about concerns with ‘riff-raff voters’, the Western Australian Parliament enacts with absolute majorities in the Legislative Assembly and the Legislative Council, the Electoral Act Amendment & Integrity Act 2021 (WA). The Act makes a number of amendments to Part III, Division 1 of the Electoral Act 1907 (WA). Relevantly, the 2021 Act includes the following provisions:

s 15 - Additional voting disqualifications
Every person otherwise eligible to vote shall be disqualified from voting at any WA election if the person:

a) is imprisoned for 6 months or more for committing an offence against a Western Australian law; or
b) fails, or refuses to sit, the Western Australian Knowledge Online Test prior to the closing of the WA electoral rolls before a State election.

s 16 – Protection from repeal or amendment
A Bill to repeal or amend s 15 can be presented for the Governor’s assent by or in the name of the Queen once the Bill has been approved by an absolute majority of both houses of the WA Parliament and has been approved by a majority of WA electors qualified to vote at a referendum. It also must have been the subject of consultation with the Western Australian Electoral Commission.

The WA Civil Liberties Union seeks your constitutional law advice as to whether these provisions may be invalid, including by the operation of s 73(2) of the Constitution Act 1889 (WA).


The main focus of the public law assignmentis to delve into voters' rights in the Western Australian Parliament (WAP), wherein Western Australian Electoral Commission is concerned about the 'riff-raff voters'. Here, the riff-raff voters had committed crimes in recent times before voting and the ones who had violated WA rules and regulations. Concerning this, the WA Parliament had passed an act with a huge number of votes in the Legislative Assembly, Council, and the Electoral Act Amendment & Integrity Act 2021. Hence, the act has been revised with a number of amendments to Part III, the Electoral Act 1907 Division 1, and that includes section 15- additional voting disqualifications and section 16- Protection from amendment or repeal. However, the overall study will be based on the constitutional law advice wherein these provisions might be invalid by considering the operation of section 73(2) of the Constitution Act.

As per the law of Australia, the civil rights of the riff-raff voters and the convicted felons have been denied from an early age. Furthermore, in ancient times, the convicted people sentenced to imprisonment were given the death penalty. However, the jurisdiction of Australia has abolished the death penalty, but the prisoners serving their imprisonment sentences for more than five years in terms of conviction for the crime against the Australian federal, or the Australian laws were deprived of their voting right at the federal elections. The jurisdiction of the state also provides disfranchisement on the basis of different grounds at the period of state elections. The enrolment integrity as well as several other measures in concern to the Electoral and Referendum Amendment Bill 2004, prior to the Commonwealth Parliament put forward the proposal of removing voting rights of the prisoners, who are serving their sentence of full-time detention. . On this detention, the entire person who is serving a sentence is included, while the exception was given only to those prisoners who were serving temporary detention or on the verge of relinquishing as per the scheme. As per the Electoral Act 1907 WA, the Australian federal further added that any person who has yet to serve or serve the sentence of imprisonment or detention should be disqualified from voting. Relevantly, the 2021 Act included more provisions, such as if a person has been serving the sentence of imprisonment for more than six months for committing an offence against the law of Australia, then they will not be eligible to vote. Also, if a person fails or denies sitting the Western Australian Knowledge online test before the closing of WA electoral rolls, the person shall be disqualified from their voting rights. This provision was introduced by Australian law with the aim to minimize the number of prisoners, those who are disqualified from their voting right. Under the Electoral Act 1907, a person is not allowed to be nominated as a candidate in the election or disqualified if the person has been sentenced to imprisonment for committing a crime or an offence against the Western Australian Law. .

The provision from repeal or amendment stated that a bill could be presented for approval to the Governor, and in order to become a law, it needs to be approved by the majority of the house members. If the repeal or amendment for the bill is approved, then the changes and reviews can be made in the bill. Protection from repeal or amendment is required because of the provision of individual rights that gives certain rights to the Australian citizen that cannot be violated. If there is an amendment in the bill, then it affects different individuals differently, and in such a situation, protection from repeal or amendment is needed. The Australian law protects the people from being adversely affected by amendments in the bill. The protection is given in the form of the voting right in section 41, residential status in section 117 and freedom of religion in section 116. All these sections in the Australian law protect the individual from getting exploited and affected by the changes in the existing laws. The commission of human rights also has an active role to play in this scenario since they are the authoritative body that governs the right of the people in Western Australia. Furthermore, the repeal or amendment of the bill is done through the submission of an ordinance where a proposition is presented for the specified repeal or amendment. Then the process of amendment or repeal is initiated through the submission of a petition. This petition is presented to the people for the purpose of voting because they are the ones that will be affected by the amendment, and they have the right to approve or reject the bill since they are the ones who are directly affected by the changes in the law and legislation. Along with that, the proposition needs to be clear and transparent so that all the people are aware of what they are voting for. If no clear presentation is given regarding the amendment or repeal, the people will be confused, and their vote may be void. In order to prevent this from happening, the proposition needs to be published, and all the people need to be aware of what they can expect.

Operation of Constitution Act 1889
The Constitution Act of 1889 (WA) was established to set up the parliament's purpose, structure, and power in Western Australia. This Constitution has been based upon the legislation enacted by Britain in their House of Commons, and this was a non-democratic council of legislative. In Western Australia, the parliament passes the laws and public policies such as provisions, ordinary law, money law, etc. In the initial formation days, the voting rights for the election of the members of the parliament were not given to all the people, and it was limited to only a few people based on their genders and communityAttorney-General (Cth) (Ex relMcKinlay) v Commonwealth[2017] . With the introduction of democratic government in Western Australia, equal voting rights were given to all the people, and the election process was made more transparent. . According to the Constitution Act, the legislative council ensured fair and smooth voting across the entire geographical region. The Constitution Act of Australia states that a bill that has been passed through the legislative assembly and the legislative council shall be treated under the provision of sec 73 (2). Then the bill shall be given to the Governor so that approval can be gained, and the bill shall not be considered law unless the Governor approves it.

Furthermore, section 73 (2) also states any changes in the bill in the Governor's offices will not be considered official changes in the provisions of the bill. . The parliament is not obligated to accept these changes made in the Governor's office. Furthermore, this section of the act also deals with the legislative council and legislative assembly structure. The section states that a bill that deals with the guidelines for the formation and composition of the legislative assembly and legislative council members and further states that the members must be chosen directly by the people. This means the people of Western Australia have the right to vote and select the members of the legislative council and legislative assembly. Therefore, it is evident that this section of the Constitution deals with the voting right of the people of Western Australia. Along with that, this section states that a bill that is not approved in the first reading has the provision to be read for the second and the third time unless that Governor is absolutely sure about the approval or rejection of the bill. The Governor shall not reject or approve the bill after reading it because after the bill has been approved, then it becomes a law. This can be troublesome because once a bill becomes a law, it is a tedious and lengthy process to repeal or amend it. . It takes a lot of time and resources to repeal or amend a law, and this is why the section directs the Governor to opt for second and third reading before taking any kind of decision regarding the bill. With the use of the provisions of this section, the validation of provisions can be done because the act clearly states all the points and requirements that are legally and officially accepted by the government and the parliament. The advice regarding the provision of the Civil Liberates Union of Australia can be given by analyzing section 73 (2) of the Constitution Act 1889 because it deals with the passing of bills, powers the Governor and Parliament in the passing of the bill. The section gives a detailed guideline of the passing of the bill and what the Governor needs to do while dealing with the situation of passing the bill and making it a law.

Constitutional Law Advice
After analyzing the overall included provisions, wherein imprisoned for six months or more for committing an offence under government law of WA and fails to obey the WA Knowledge Online Test prior to the closing of the WA electoral rolls prior to a state election are not for a vote under section 15. Conversely, section 16 states that a Bill to amend section 15 needs to be finalized with a huge majority of WA electors qualified to vote at a referendum. Taking into consideration the operation of section 73 (2) of the Constitution Act 1889, it can be said that since the constitution has been started, a right to vote for every individual has been passed without any differentiation whether they are criminal or rules breakers. Every individual has a right to vote, and the constitutional law itself states this as a fundamental right that has been created by the government to know that their one vote can make a difference for the nation. Hence, prisoners or criminals are just like other people and are allowed to enjoy their human rights, and they can file complaints against the commission about violations of human rights and discrimination that takes place for prisoners.

However, considering the United National Human Rights Committee (UNHRC), it can be said that the right to be treated with dignity, humanity and respect while in detention are the basic rights of a human being. The UNHRC has made it apparent that prisoners must have the benefit of all the rights in the International Covenant on Civil and Political Rights (ICCPR), matter to limits that are inevitable in closed surroundings’Roach v Electoral Commission [2007] . Under Articles 7 and 10 of the ICCPR, Convention on the Rights of the Child and Convention against Torture, under article 37, the act for human rights has been set out to meet the basic human rights of a human being. . As per the United Nations Human rights, the right to vote is the other right of exceptional significance to prisoners is the right to vote under article 25, ICCPR). In Australia, the people who are being sentenced to about three years in prison do not have a national right to vote in federal electionsHirst v The United Kingdom (No 2) .It has been found that some people states as it might be practical to reprimandcriminals who have committed severe offences by relieving them of the right to vote.

Hence, the UNHRC considers that rejecting people to vote by looking upon the conviction that they have been convicted of a criminal act of the right to vote does not meet the terms and obligations under the ICCPR article 25 or does not serve the objectives of rehabilitation of the Covenant under article 10(3). On the other hand, the Human rights commission of Australia does not even promote the perception that criminals in prison should have their right to suspension of the vote throughout their imprisonment period. As per the constitutional law, the right to vote needs to be equally enjoyed by all, but in Australia, people out there does not enjoy equal right to vote. Every nation and their constitutional law believe that a healthy democracy assures that all the societal members have equivalent access to the political activities . Therefore, considering all these facts, it can be said that Section 15 and 16 provisions are naturally invalid as every people must be allowed to vote and has a right to vote as per the constitutional law; even criminals who are in prisons holds a right to voting. The participation of politics is based on democracy and is a significant part of all human rights enjoyments.

In the conclusion of the report on public law assignment, it can be said that, through all the analysis and evaluation of all the appropriate sections and provisions, it was found that provisions 15 and 16 were invalid. This conclusion was drawn through an in-depth discussion of how the Constitution Act 1889 operates under section 73 (2). The detailed discussion of this section of the act has allowed giving proper and adequate advice to the Civil Liberties Union. Along with that, the advice has also been given after a thorough and detailed discussion about the provisions of voting disqualification and the provision for the protection form amendments or repeal of the law. The discussion of these provisions has been helpful in designing and preparing quality advising for the union and the conclusion that the provision is deemed to be invalid and also is not aligned with human rights.


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