The first bench of the High Court: Barton, Griffith & O'Connor
Few limits on power over electoral law.
The Constitution of Australia places very few limits on the Commonwealth parliament's power over the electoral law.
The Constitution is effectively a colonial free-trade agreement between competing colonies and is deliberately devoid of human rights measures. As Priest and Williams (2010) argued, the drafters ditched attempts to write-in human rights protections in their haste to secure agreement.
In terms of federal electoral law, the result was a compromise to allow the colonial era laws of the newly minted states to decide who could vote (section 30) and how the vote was to be conducted (section 31) at least until a Commonwealth law was put in place.
The Constitution is silent on most matters affecting the conduct of elections and effectively leaves it for the Commonwealth Parliament to legislate how it sees fit with just these constraints:
The number of senators
Section 7 requires that there be at least six senators for each of the original states directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
Numbers in the House of Representatives tied to the numbers in the Senate
Section 24 requires that the number of members of the House of Representatives be as nearly as practicable, twice the number of senators, with each founding state granted at least five senators. Until the parliament otherwise provides, the number of members of the House of Representatives is based on a quota tied to the proportion of the national population in that state. For an example of how this operates, see this discussion by Antony Green from 2011.
Interim saving of existing electoral laws of the colonies
Section 29 operated to use state law for deciding electoral divisions until Commonwealth law applied and even mentions the possibility of multiple members in electorates.
This means that the Commonwealth parliament can solve the gender equity problem as easily as passing a law regulating lighthouses.
Equal representation in the House of Representatives can be legislated for by halving the number of electorates and providing that each electorate elect a male and a female representative. This avenue was canvassed by McCulloch in 2009.
In Australia there is no constitutional impediment to mandating gender balanced representation. We cannot blame the long dead white men behind the Constitution for the failure to achieve gender equality in parliament.
We must act in accordance with two principles:
- that women in parliament are equally capable of governing in any matter of state, and
- that a Parliament without equal representation of women on an equal footing, does not truly represent the people.
The true obstacle appears to be, not that it is legally difficult, but rather, it is simply unthinkable - just as in the past it was once unthinkable to allow women or indigenous Australians to vote. Despite the lack of legal impediments, there are few signs that Australia will escape the "psychic straightjacket" of perceived impossibility and take a lead in reform.