LAW 3612 - Australian Electoral Law
North Terrace Campus - Summer - 2023
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General Course Information
Course Details
Course Code LAW 3612 Course Australian Electoral Law Coordinating Unit Adelaide Law School Term Summer Level Undergraduate Law (LLB) Location/s North Terrace Campus Units 3 Contact Intensive Available for Study Abroad and Exchange Prerequisites LAW 2501 Assumed Knowledge LAW 1501 Restrictions This course is restricted to Law(BLAWS) and Politics students(BArts /Politics & International Relations, B.International Relations). Students in B.A. (Advanced) programs may also enrol with the approval of the course co-ordinator. Assessment Class participation, Class presentation, Essay (if exam not chosen), Examination (if essay not chosen) Course Staff
Course Coordinator: Professor Greg Taylor
Course co-ordinator : Professor Greg Taylor
Guest lecturers to be advisedCourse Timetable
The full timetable of all activities for this course can be accessed from .
Summer semester 2023. Contact – up to four hours per day on 9 & 11 – 20 January inclusive : 4 p.m. – 8 p.m. on each day (with a break).
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Learning Outcomes
Course Learning Outcomes
On successful completion of this course students will be able to :
1. evaluate and apply advanced principles of electoral law, and legal and theoretical concepts in general, to a range of scenarios in Australian elections;
2. critique the operation of Australian electoral law from a theoretical, practical and policy perspective, having developed the capacity to engage with content in a questioning manner;
3. develop effective and concise written and oral arguments for an audience concerned with legal and political matters;
4. analyse the operation of Australian electoral law from a policy perspective, and in the context of social and cultural diversity;
5. exercise professional judgment in conducting a co-operative research project on a current topic in electoral law and interact effectively as a member of a team.
University Graduate Attributes
This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:
University Graduate Attribute Course Learning Outcome(s) Attribute 1: Deep discipline knowledge and intellectual breadth
Graduates have comprehensive knowledge and understanding of their subject area, the ability to engage with different traditions of thought, and the ability to apply their knowledge in practice including in multi-disciplinary or multi-professional contexts.
1, 2, 4 Attribute 2: Creative and critical thinking, and problem solving
Graduates are effective problems-solvers, able to apply critical, creative and evidence-based thinking to conceive innovative responses to future challenges.
1, 2 Attribute 3: Teamwork and communication skills
Graduates convey ideas and information effectively to a range of audiences for a variety of purposes and contribute in a positive and collaborative manner to achieving common goals.
3, 5 Attribute 4: Professionalism and leadership readiness
Graduates engage in professional behaviour and have the potential to be entrepreneurial and take leadership roles in their chosen occupations or careers and communities.
1, 3, 5 Attribute 5: Intercultural and ethical competency
Graduates are responsible and effective global citizens whose personal values and practices are consistent with their roles as responsible members of society.
1, 5 Attribute 7: Digital capabilities
Graduates are well prepared for living, learning and working in a digital society.
2, 4 Attribute 8: Self-awareness and emotional intelligence
Graduates are self-aware and reflective; they are flexible and resilient and have the capacity to accept and give constructive feedback; they act with integrity and take responsibility for their actions.
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Learning Resources
Required Resources
Students will need to download the course readings from the course web site.
Recommended Resources
The required resources will be the course readings drawn from various sources and made available to students on Myuni.
Recommended but not prescribed book : Graeme Orr, The Law of Politics : Elections, Parties and Money in Australia (2nd ed., Federation, Alexandria 2019). It is not necessary to buy this book; it will be available on reserve.
Online Learning
Students are expected to check the course website regularly to keep up to date with announcements, materials and learning resources throughout the course.
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Learning & Teaching Activities
Learning & Teaching Modes
This course will be taught intensively in accordance with the timetable.
Students will be required to discuss, debate and defend their analysis of the relevant material set in the course readings.
There is no formal attendance requirement, except for your group presentation, but the participation mark will be based in part on attendance. The classes will not be recorded.
Workload
The information below is provided as a guide to assist students in engaging appropriately with the course requirements.
The information below is provided as a guide to assist students in engaging suitably with the course requirements.
Contact time : attend classes as shown in the timetable. This amounts to 36 hours of formal class time across the semester.
Preparation time : In addition to attending formal classes it is anticipated that students will do substantial independent work to prepare for classes and to complete the course assignments. The University expects full time students (those undertaking 12 units per semester) to devote a total of 48 hours per week to their studies.Learning Activities Summary
Course timetable and learning activities summary
* indicates a topic suitable for non-law students
Day
Date
Topic
Readings
1
Monday 9/1
1. Introduction to the course
2. History of elections
*3. History of elections : the extension of the franchise in the nineteenth century
*4. History of elections : the introduction of compulsory voting
1. This course outline and other information provided. Presentations on this topic are not available!
2. Statute of Westminster the First 3 Edw. I c. 5 (1275) (England); Ashby v. White (1703) 2 Ld Raym 938, 950-958; 92 ER 126, 134-138 per Holt C.J.K.B. and the House of Lords; Cockburn L.C.J. to the Lord Chancellor, The Times, 18 February 1868, p. 5; Hearn, The Government of England : Its Structure and Its Development (George Robertson, Melbourne 1867), pp. 484f
*3. Lauchs, “The Return of Manhood Suffrage to Queensland, 1863 – 1872” (2010) 12 Jo Aust Colonial Hist 119; Smith, “‘Democracy’ in the Second Reform Debates” (1964) 11 Historical Studies A&NZ 306
*4. Brett, “How Australia Got Compulsory Voting” in Bonotti/Strangio (eds.), A Century of Compulsory Voting in Australia : Genesis, Impact and Future (Palgrave Macmillan, Singapore 2021), ch. 2; Gow, “The Introduction of Compulsory Voting” (1971) 6 Politics 201; Smith, “Compulsory Voting in Australia” in Lucy (ed.), The Pieces of Politics (3rd ed., Macmillan, South Melbourne 1983), ch. 16
2
Wednesday 11/1
*5. Democratic theory : nature and purpose of elections
6. Legal nature of political parties and their status, powers and regulation
*5. Dahl, On Democracy (Yale U.P., 1998), chh. 4, 5; Orr, “The Ritual and Aesthetic in Electoral Law” (2004) 32 Fed LR 425
6. Cameron v. Hogan (1934) 51 CLR 358; Baldwin v. Everingham [1993] 1 Qd R 10; Asmar v. Albanese [2022] VSCA 19; [2022] HCASL 71; Camenzuli v. Morrison [2022] NSWCA 51; [2022] HCATrans 60
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Thursday 12/1
*7. Donations to political parties and public funding of them
*8. Methods of voting (proportional representation, first-past-the-post, run-off system etc.)
*7. Ng, Regulating Money in a Democracy : Australia’s Political Finance Laws across the Federation (Report for the Electoral Regulation Research Network, January 2021)
*8. Day v. Australian Electoral Officer for the State of South Australia (2016) 261 CLR 1; Bach, Platypus and Parliament : the Australian Senate in Theory and Practice (Department of the Senate, Canberra 2003), pp. 44 – 54; Blais/Massicotte, “Electoral Systems” in Leduc/Niemi/Norris (eds.), Comparing Democracies 2 : New Challenges in the Study of Elections and Voting (Sage, London 2002), ch. 2
4
Friday 13/1
9. The drawing of electoral boundaries : processes and significance
10. The franchise and federal and State constitutional provisions relating to it
*11. Compulsory voting – for and against
9. Martin v. Electoral Districts Boundaries Commission (2017) 127 SASR 362; Levy, “Drawing Boundaries : Electoral Law Fairness and its Democratic Consequences” in Tham/Costar/Orr (eds.), Electoral Democracy : Australian Prospects (Melbourne U.P., 2011), ch. 4
10. Electoral Act 1985 (S.A.), ss 29 – 35, 69; Roach v. Electoral Commissioner (2007) 233 CLR 162
*11. Strangio, “‘A Lonely and Quixotic Battle’ : A Short History of Agitation Against Compulsory Voting in Australia” & Umbers, “Assessing Objections to Compulsory Voting in Australia” in Bonotti/Strangio (eds.), A Century of Compulsory Voting in Australia : Genesis, Impact and Future (Palgrave Macmillan, Singapore 2021), chh. 3, 4
5
Monday 16/1
*12. The electoral machinery : writs, dates and dissolutions
*13. Formal and informal votes
*14. E-voting
*12. Senate — Federal Constitution, ss 9, 12; Election of Senators Act 1903 (S.A.); Sawer, Federation under Strain (Melbourne U.P., 1977), ch. 3
H. of R. — Federal Constitution, ss 32, 33; Commonwealth Electoral Act 1918 (Clth) s 154 (1) – (3) & Schedule 1 Form B; House of Representatives Practice (online ed.), ch. 3, under headings “general elections”, “by-elections”, “the election process”
*13. Hill, “Informal Voting under a System of Compulsory Voting” in Tham/Costar/Orr (eds.), Electoral Democracy : Australian Prospects (Melbourne U.P., 2011), ch. 3; Mitchell v. Bailey (No. 2) (2008) 169 FCR 529
*14. Culnane/Essex/Lewis/Pereira/Teague, “Knights and Knaves Run Elections : Internet Voting and Undetectable Electoral Fraud” [2019 (July)] IEEE Security & Privacy 62; Halderman/Teague, “The New South Wales iVote System : Security Failures and Verification Flaws in a Live Online Election” in Haenni/Koenig/Wikström (eds.), E-Voting and Identity : 5th International Conference, VoteID 2015 Bern, Switzerland, September 2 - 4 2015 – Proceedings (Springer, Cham 2015), pp. 35 - 53; Mercurio, “Overhauling Australian Democracy : the Benefits and Burdens of Internet Voting” (2002) 21 U Tas LR 23
6
Tuesday 17/1
15. The filling of casual vacancies through by-elections and other methods
16. Regulation of election advertising and campaigns
15. Federal Constitution, ss 15, 33; O’Sullivan v. Andrews (2016) 50 VR 600; Crawford, “Senate Casual Vacancies : Interpreting the 1977 Amendment” (1980) 7 Adel LR 224
16. Electoral Act 1985 (S.A.) ss 107 (5),[1] 113; Cameron v. Becker (1995) 64 SASR 238; King v. Electoral Commissioner (South Australia) (1998) 78 SASR 172; Electoral Matters Committee (Victoria), Inquiry into the Impact of Social Media on Victorian Elections and Victoria’s Electoral Administration (Victorian Parliamentary Paper No. 279/2018–2021), ch. 6
7
Wednesday 18/1
17. – 22.
Grounds for challenge of results, Courts of disputed returns and other methods of challenging election results
17. Judicial power and the Court at federal level — Re Culleton [2017] HCA 3; (2017) 91 ALJR 302, [19] – [28]; Schoff, “The Electoral Jurisdiction of the High Court as the Court of Disputed Returns : Non-Judicial Power and Incompatible Function” (1997) 25 Fed LR 317; Walker, “Disputed Returns and Parliamentary Qualifications : is the High Court’s Jurisdiction Constitutional?” (1997) 20 UNSWLJ 257
18. Constitution, powers and procedure of the federal Court of Disputed Returns — Federal Constitution, s 47; Commonwealth Electoral Act 1918 (Clth) Part XXII; Rudolphy v Lightfoot (1999) 197 CLR 500; Gageler S.C., “The Practice of Disputed Returns for Commonwealth Elections” in Orr/Mercurio/Williams, Realising Democracy : Electoral Law in Australia (Federation, Leichhardt 2003), ch. 14
19. Qualification-based challenges, part 1 — Commonwealth Parliamentary Debates, House of Representatives, 10 June 1999, pp. 6720 - 6735; Re Culleton [No. 2] (2017) 263 CLR 176; Re Day [No. 2] (2017) 263 CLR 201
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Thursday 19/1
20. Qualification-based challenges, part 2 — Re Canavan (2017) 263 CLR 284; Re Nash [No. 2] (2017) 263 CLR 443; Re Kakoschke-Moore (2018) 263 CLR 640
21. Challenges to the count — Commonwealth Electoral Act 1918 (Clth) s 365, proviso;[2] Kean v. Kerby (1920) 27 CLR 449; Australian Electoral Commission v. Johnston (2014) 251 CLR 463
22. Illegal practices — Garbett v. Liu (2019) 273 FCR 1; Featherston v. Tully (2002) 83 SASR 302; (2002) 83 SASR 347
9
Friday 20/1
*23. The federal Joint Standing Committee on Electoral Matters and other policy review mechanisms
*24. Constitutional referenda, federal and State
*23. Journals of the Senate,[3] 22 July 2019, pp. 125, 142f, 147 (motion passed); Kelly, Directions in Australian Electoral Reform : Professionalism and Partisanship in Electoral Management (A.N.U. Press, 2012), ch. 2 & Appendix A; Reader, “Assessing the Policy Impact of Australia’s Parliamentary Electoral Matters Committees : A Case Study of the Victorian Electoral Matters Committee and the Introduction of Direct Electoral Enrolment” (2015) 68 Parliamentary Affairs 494
*24. Federal Constitution, s 128; Constitution Act 1934 (S.A.) s 88; Brooks/Gill/Weste, South Australian Referenda, 1896 – 1991 (South Australian Parliament Research Library, Adelaide 2008); Handley J.A., “Informal Votes at a Constitutional Referendum” (2011) 39 Fed LR 509; Kildea/Smith, “The Challenge of Informed Voting at Constitutional Referendums” (2016) 39 UNSWLJ 368; Williams/Hume, People Power : the History and Future of the Referendum in Australia (U.N.S.W. Press, 2010), ch. 1
[1] In reading the cases listed for this topic, it is important to be aware that s 107 (5) was inserted by the Electoral (Miscellaneous) Amendment Act 2009 (S.A.) s 38.
[2] This proviso was inserted into the Act by the Commonwealth Electoral Act 1922 (Clth) s 25 (c).
[3] This is not the verbatim report of debates, usually called “Hansard” after Thomas Hansard (1776 – 1833) and more formally “Parliamentary Debates” or some similar name. The Journals are, rather, the minutes of proceedings, also called in some Houses “Votes & Proceedings” : these minutes, which are the official record of the House’s resolutions, merely record actions agreed upon, not almost everything said in debate as Hansard does. Distinct from those two official sets of parliamentary publications is a third class of documents, the Parliamentary Papers, which are documents produced outside Parliament and presented to it for its information.
Specific Course Requirements
There are no additional requirements for completion of this course other than described elsewhere in this document. -
Assessment
The University's policy on Assessment for Coursework Programs is based on the following four principles:
- Assessment must encourage and reinforce learning.
- Assessment must enable robust and fair judgements about student performance.
- Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
- Assessment must maintain academic standards.
Assessment Summary
Assessment task
Group/individual
Due date(s)
%
weight
Length
Redeemable?
C.L.O.s
Active participation
Individual
N/A
10
N/A
No
1, 2, 3
Class presentation
Group presentation
In the class for the assigned presentation topic
20
Twenty minutes for the whole group
No
1, 2, 3, 5
Essay (if examination not chosen)
Individual
Friday 10 February at 5 p.m.
70
Maximum of 5000 words
No
1 - 4
Examination (if essay not chosen)
Individual
in the summer-semester examination period
70
Three hours
No
1 - 4
Assessment Detail
1. Essay 70%
Compulsory (unless examination chosen) and non-redeemable
Topics are below. Further topics may be approved. Given the short period of time available, it is essential to choose a topic (or discuss an alternative with the course co-ordinator) in plenty of time to conduct the research for and write a good essay. The asterisk denotes essay topics that are suitable for non-law students.
2. What use has been made in subsequent case law, both English and Australian, of Ashby v. White (1703) 2 Ld Raym 938; 92 ER 126?
*3. To what extent was “democracy” considered a good thing in nineteenth-century discussions, both English and Australian?
*4. What factors led to the introduction of compulsory voting in Australia, and does the history of it have any lessons for us today?
*5. Evaluate the various theories about the nature and purpose of elections and state which you find most convincing and why.
6. Should Cameron v. Hogan (1934) 51 CLR 358 be overruled? (Assume you are the High Court of Australia and have the power to do this if it’s desirable.)
*7. What reforms should be made to the law about disclosure of political donations and why?
*8. If your State had only one House of Parliament, what voting system should it adopt?
9. Was the removal of the former “fairness clause” (s 83 (1) and (3) inserted by the Constitution (Electoral Redistribution) Amendment Act 1991 (S.A.)) legally valid – and was it a good idea?
10. Much criticism has been expressed about the decision in Roach v. Electoral Commissioner (2007) 233 CLR 162 – was the decision correct?
*11. Should compulsory voting be abolished?
*12. Does the process for calling a federal election need to be so complicated?
*13. Should optional preferential voting be introduced for federal or State elections?
*14. Should Australia have more e-voting?
15. Provide an overview of the problems involved in filling casual vacancies in systems of proportional representation and state how, in an ideal world and with a blank slate, you would regulate this field at both federal and State levels.
*16. What are the three most important reforms needed to the law around election advertising and campaigns?
17. Is the High Court of Australia’s jurisdiction as the Court of Disputed Returns constitutionally valid?
*19. What reforms are needed to the qualifications for election to the federal Parliament?
20. In consultation with the course co-ordinator, select a decision of a Court of disputed returns and write
a critical analysis of it.
*23. In consultation with the course co-ordinator, select a report of the Joint Standing Committee on Electoral Matters and write a critical analysis of it.
*24. Pick any two areas in which the law about federal constitutional referenda is in need of reform and write a proposal for reform in those areas.
25. Devise your own question, and – if it is approved by the course co-ordinator – answer it.
Due Date : as above
The criteria for assessment are : extent of research going beyond the course materials provided; depth of understanding of the materials; articulation and defence of the student’s own view with reference to other possible views; correct use of the English language and adequate referencing (including a bibliography).
Submission – via Turnitin
When an assessment is submitted after the due date without an extension, 5% of the total mark possible will be deducted for every twenty-four hours or part thereof that it is late, including each day on a weekend and public holidays. For example, an essay that is submitted after the due date and time but within the first twenty-four-hour period, and that has been graded at 63%, will have 5% deducted, for a final grade of 58%. An essay that is more than twenty-four hours late will lose 10%, etc.
Length :
The assignment is to be a maximum of 5000 words, including footnotes. (Do not think that this is a goal you must reach at all costs; depending on your topic, 4000 words may well be sufficient.) Footnotes are to contain references only and substantive material in footnotes will not necessarily be read. 5% of the total mark possible for a written assessment will be deducted for every 100 words (or part thereof) by which it exceeds a stipulated word limit. For example, a 3,000-word essay graded at 63% will have 5% deducted if it is between 3,001 and 3,100 words long for a final mark of 58%. If the essay is between 3,101 and 3,200 words long, 10% will be deducted for a final mark of 53%, etc. Word limits include all words in the text, headings, quotations and footnotes. Any separate cover page, table of contents, bibliography or list of sources is excluded from the word count. If the word count is misstated, this may be regarded as academic dishonesty.
2. Examination 70%
Compulsory (unless essay completed) and non-redeemable. Students must choose between the essay and the examination – it is not envisaged that both will be chosen because they are equivalent assessment items : each tests skills involving constructing an argument in response to a question on the basis of reading and reflection and using the legal and policy tools of analysis developed during the course.
The examination is an open-book examination of three hours’ duration. It aims to test students’ knowledge of the material in the readings, including the development of a personal view. No further reading or research whatsoever will be needed.
There will be six policy-based questions similar to essay questions of which students must choose any three. Examples (not actual questions in the examination, but illustrative of the style to be expected) are, “Should compulsory voting be abolished?” and “Evaluate the current law on donations to political parties in the light of democratic theory”; in responding to such essay-like questions students will need to draw on the course readings, course discussions and their own personal reflections.
Students will be assessed on their knowledge and understanding of the course materials, the cogency of the arguments they present and the development of their own personal standpoint. As can be seen, the examination tests a greater breadth of knowledge than the essay; the essay allows students to select a single topic for in-depth study, while the examination surveys a larger portion of the course in less detail and without the need for any further research but including, as with the essay, the
development of a well-founded personal view on the basis of the skills developed in the course.
3. Class presentation 20%
Compulsory and non-redeemable
The size of groups will depend upon the level of enrolment, but generally a group should consist of two students. Students will
be required to prepare a twenty-minute group presentation on a topic from the list of presentation topics above using the reading(s) provided. Students may contact the course co-ordinator with group names and a topic choice after enrolment, as long as the topic has not already been chosen by someone else. Remaining students will be allocated into groups near the start of classes using topics not already taken.
No research beyond the materials provided is expected for the presentation, but clearly students will need to read the materials thoroughly. Visual aids for the presentation such as slides should be used and electronic copies provided to the course co-ordinator by e-mail at the start of the day’s class.
Marking criteria for the presentation are : a thorough understanding of the chosen topic and the development of a personal standpoint on the part of students demonstrating skills of reasoning and enquiry based on the readings and reflection. (It is perfectly in order for students in one group to agree to disagree and take contrasting standpoints.)
A student who fails to contribute adequately to a group will suffer a marks penalty that adjusts their mark for this item of as-sessment to a level commensurate with their contribution.
4. Active participation 10%
Compulsory and non-redeemable
Students will be assessed on their active participation in seminars. This means they must attend at and prepare for class by completing the readings.
Marking criteria : active participation will be assessed against the following criteria : attendance; preparation; quality of contributions; listening and engagement with others.
Submission
See prevous heading.Course Grading
Grades for your performance in this course will be awarded in accordance with the following scheme:
M10 (Coursework Mark Scheme) Grade Mark Description FNS Fail No Submission F 1-49 Fail P 50-64 Pass C 65-74 Credit D 75-84 Distinction HD 85-100 High Distinction CN Continuing NFE No Formal Examination RP Result Pending Further details of the grades/results can be obtained from Examinations.
Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.
Final results for this course will be made available through .
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Student Feedback
The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.
SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.
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Student Support
- Academic Integrity for Students
- Academic Support with Maths
- Academic Support with writing and study skills
- Careers Services
- Library Services for Students
- LinkedIn Learning
- Student Life Counselling Support - Personal counselling for issues affecting study
- Students with a Disability - Alternative academic arrangements
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Policies & Guidelines
This section contains links to relevant assessment-related policies and guidelines - all university policies.
- Academic Credit Arrangements Policy
- Academic Integrity Policy
- Academic Progress by Coursework Students Policy
- Assessment for Coursework Programs Policy
- Copyright Compliance Policy
- Coursework Academic Programs Policy
- Intellectual Property Policy
- IT Acceptable Use and Security Policy
- Modified Arrangements for Coursework Assessment Policy
- Reasonable Adjustments to Learning, Teaching & Assessment for Students with a Disability Policy
- Student Experience of Learning and Teaching Policy
- Student Grievance Resolution Process
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Fraud Awareness
Students are reminded that in order to maintain the academic integrity of all programs and courses, the university has a zero-tolerance approach to students offering money or significant value goods or services to any staff member who is involved in their teaching or assessment. Students offering lecturers or tutors or professional staff anything more than a small token of appreciation is totally unacceptable, in any circumstances. Staff members are obliged to report all such incidents to their supervisor/manager, who will refer them for action under the university's student鈥檚 disciplinary procedures.
The 成人大片 is committed to regular reviews of the courses and programs it offers to students. The 成人大片 therefore reserves the right to discontinue or vary programs and courses without notice. Please read the important information contained in the disclaimer.
