In the Declaration of Independence, Thomas Jefferson wrote, "Governments are instituted among Men, deriving their just Powers from the Consent of the Governed."
But how would Americans consent to be governed? Who should vote? How should they vote? The founders wrestled with these questions. They wondered about the rights of minorities. In their day, that meant worrying if the rights of property owners would be overrun by the votes of those who did not own land. James Madison described the problem this way:
The right of suffrage is a fundamental Article in Republican Constitutions. The regulation of it is, at the same time, a task of peculiar delicacy. Allow the right [to vote] exclusively to property [owners], and the rights of persons may be oppressed... . Extend it equally to all, and the rights of property [owners] ...may be overruled by a majority without property....
Eventually, the framers of the Constitution left details of voting to the states. In Article I Section 4, the Constitution says:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.
Unfortunately, leaving election control to individual states led to unfair voting practices in the U.S. At first, white men with property were the only Americans routinely permitted to vote. President Andrew Jackson, champion of frontiersmen, helped advance the political rights of those who did not own property. By about 1860, most white men without property were enfranchised. But African Americans, women, Native Americans, non-English speakers, and citizens between the ages of 18 and 21 had to fight for the right to vote in this country.
The right to take part in public affairs and elections guarantees the right of citizens to stand for public office, to vote in elections and to have access to positions in public service.
Unlike other rights in the International Covenant on Civil and Political Rights [ICCPR], the right to take part in public affairs and elections applies only to Australian citizens.
Where does the right to take part in public affairs and elections come from?
Australia is a party to seven core international human rights treaties. The right to take part in public affairs and elections is contained in article 25 of the International Covenant on Civil and Political Rights [ICCPR].
See also article 5 of the Convention on the Elimination of All Forms of Racial Discrimination [CERD] , articles 7 and 8 of the Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] and article 29 of the Convention on the Rights of Persons with Disabilities [CRPD].
The CRPD requires countries to ensure that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use for people with disability.
CEDAW requires countries to all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right to participate in non-governmental organisations and associations concerned with the public and political life of the country.
When do I need to consider the right to take part in public affairs and elections?
You will need to consider the right to take part in public affairs and elections if you are working on legislation, a policy or a program that:
- limits the ability of a category of individuals to stand for office or to vote in elections
- regulates the conduct of elections and the electoral process, including funding of and expenditure by political parties and the drawing of electoral boundaries
- regulates the communication of information and ideas about public and political issues, or
- regulates eligibility for employment in the public service or appointment to public office.
This list should not be regarded as exhaustive.
When working on a measure that restricts the right to take part in public life and elections, you should ensure that any restrictions can be reasonably and objectively justified.
What is the scope of the right to take part in public affairs and elections?
While the other rights and freedoms recognised by the ICCPR apply to all individuals within the territory and subject to the jurisdiction of Australia, the rights in article 25 only apply to Australian citizens.
The UN Human Rights Committee has stated that the conduct of public affairs, referred to in article 25[a], relates to the exercise of legislative, executive and administrative powers, and covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. Citizens participate directly in the conduct of public affairs when they are elected to public office. They also do so when they vote to decide public issues through a referendum or other electoral process. Indirect participation takes place when people elect bodies such as parliaments to represent them.
The Committee has also stated that:
- reasonable limitations on election campaign expenditure may be justified where necessary to ensure that the democratic process is not distorted by disproportionate expenditure on behalf of any candidate or party
- the drawing of electoral boundaries should not distort the electoral process, and within the framework of the country's electoral system, the vote of one elector should be equal to the vote of another.
The term 'public service' in article 25[c] is understood to extend to all positions within the executive, legislature and judiciary.
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Can the right to take part in public affairs and elections be limited?
Derogation
Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to take part in public affairs and elections 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.
Limitation
Conditions may be applied to the exercise of the rights in article 25, but they should be established by law and should be based on objective and reasonable criteria. The Human Rights Committee has stated that mental incapacity may be a ground for denying a person the right to vote or to hold office. The Committee has stated that physical disability, literacy, educational or property requirements would not be reasonable conditions. The Committee has also stated that if conviction for an offence is a basis for suspending the right to vote, the period of suspension should be proportionate to the offence and the sentence. Similarly, the Human Rights Committee has stated that minimum age limits for the right to vote [which should be available to every adult citizen] and to stand for public office must be based on objective and reasonable criteria.
Which domestic laws relate to the right to take part in public affairs and elections?
Sections 16 and 34 of the Constitution make provision for the qualifications to be members of Parliament. Section 44 of the Constitution provides that certain categories of persons, including those holding 'any office of profit under the Crown', shall not be entitled to be elected to Parliament. The Human Rights Committee has stated that the exclusion of a police officer from eligibility for election to public office was permissible.
The right to vote in Commonwealth elections is governed by the Commonwealth Electoral Act 1918. Section 93 sets out the categories of persons who are eligible to vote and provides that persons in certain categories are not eligible. Those categories include the holders of temporary visas under the Migration Act 1958 or unlawful non-citizens under that Act, persons who by reason of being of unsound mind are incapable of understanding the nature and significance of enrolment and voting and persons who have been convicted of treason or treachery.
In Roach v Electoral Commissioner [2007] 233 CLR 162, the High Court held that amendments to the Commonwealth Electoral Act in 2006 that prohibited all persons serving a sentence of imprisonment from voting were inconsistent with the system of representative and responsible government mandated by the Constitution. The Court accepted that the right to vote could be limited where there are substantial reasons for doing so, for instance on the basis of citizenship. The Court also upheld the pre‑2006 position under the Commonwealth Electoral Act whereby persons serving sentences of longer than three years were not entitled to vote. The Act has been amended since that decision to provide that a person who is serving a sentence of imprisonment of three years or longer is not entitled to vote.
The rights under article 25 are enjoyed by citizens. Entitlement to Australian citizenship is governed by the Australian Citizenship Act 2007. Note, however, that some APS agencies may choose to employ non-citizens with the relevant work entitlements, subject to those applicants having a traceable history, including employment and background checks for security clearance purposes.
The National Congress of Australia's First Peoples provides a national platform for Aboriginal and Torres Strait Islanders to have a say on important issues and creates a national voice for the opinions of for Aboriginal and Torres Strait Islanders to be heard by all Australians.
What other rights and freedoms relate to the right to take part in public life and elections?
The right to take part in public affairs and elections may also be relevant to:
- the right to self-determination in article 1 [ICCPR]
- the right to freedom of opinion and expression in article 19 [ICCPR]
- the right to peaceful assembly in article 21 [ICCPR]
- the right to freedom of association in article 22 [ICCPR].
The Human Rights Committee has stated that the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies the freedom to engage in political activity individually or through political parties and other organisations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticise and oppose, to publish political material, to campaign for election and to advertise political ideas. The right to freedom of association, including the right to form and join organisations and associations concerned with political and public affairs, is essential to the rights protected by article 25.
Articles from relevant Conventions
International Covenant on Civil and Political Rights
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: