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Why a special majority is needed

The right to vote is an essential of democracy and widely recognised as a fundamental human right.

Nearer home, the right to vote comes from the basic structure of the Constitution and its provisions. Section 73 of the Constitution provides a constitutional mandate for a system of balloting to elect members of the House of Representatives in accordance “with the first-past-the-post system”.

It is contended by the Government of the day an amendment of this section to introduce a “run-off” can be achieved by a simple majo­rity, as such amendment does not infringe any fundamental human right, specifically “freedom of thought and expression” under Section 4 of the Constitution.

The right to vote has been moulded by the Representation of the People Act (RPA), but the RPA did not give birth to the right; it has merely nurtured it over time. The act of casting a vote for one candidate or the other, in accordance with the balloting system, is the only way the voter can achieve freedom of thought and expression, which is a right guaranteed by Section 4 of the Constitution and is, to my mind, clearly a constitutional right.

However, the argument must be met that the right to vote is not a fundamental right, but a simple statutory right. While it is true the initial right cannot stand alone as a fundamental right, it is critical to appreciate this “statutory right” is at the heart of democracy, which is about choice, and the exercise of the right to vote gives life to freedom of expression under Section 4 of the Constitution.

Without this, democracy will falter into oblivion and dictatorships will flourish. The act of casting a vote in accordance with the balloting system is symbolic of expression of will or opinion by the person entitled to exercise the right being the voter. Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights remind us “the will of the people shall be the basis of the authority of government” and “free expression of the will of the electors” must be guaranteed.

The essence of the electoral system must be to ensure freedom of voters to exercise their free choice. Once the voter is deprived freedom of choice at any stage of the voting process and is forced into a position where he will either have to vote for a candidate or a party he may have rejected under the first ballot, or is relegated to a position of not voting at all in the run-off, he is being denied freedom to exercise his free choice.

Moreover, by depriving the voter the opportunity to speak, criticise and disagree on the “run-off” shows intolerance to diverse views or ideas which defeats the very “freedom of thought and expression” guaranteed under Section 4 of the Constitution.

I am strongly inclined to the view a special majority is needed to alter the first-past-the-post system in order to introduce the run-off, and this should be the starting point in the Senate debate.

Clive Phelps

St Ann’s
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