The Law Of Politics: Elections, Parties And Money In Australia

Rosemary Laing

Graeme Orr, The Law of PoliticsGraeme Orr; The Federation Press, 2010; 320 pp;
$125 (paperback)

As a young recruit to the Commonwealth public service in 1984, I recall being taken to the National Press Club to hear an address by ‘our’ minister, the late Mick Young, Special Minister of State, on major changes to the electoral law including the creation of the Australian Electoral Commission, the first general increase in the size of the federal parliament since 1949, above the line voting for the Senate and the registration and public funding of political parties and candidates. At the time, it seemed, the subject matter was eclipsed for dullness only by the then-notorious rubber chicken of the press club; but perspectives change. After many years’ involvement in supporting legislative and committee processes in the Senate, including as secretary to the Select Committee on Political Broadcasts and Political Disclosures (inquiring into the so-called ‘ad ban’ Bill, successfully challenged in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1), it is impossible not to be drawn by Graeme Orr’s new book, The Law of Politics: Elections, Parties and Money in Australia.

The Law of Politics makes a welcome contribution to a field that has generally lacked systematic treatment, a fact noted in his foreword by distinguished academic, Colin Hughes, first Australian Electoral Commissioner, who refers to it as a Cinderella that has now been deservedly given its first textbook. As a textbook, The Law of Politics is an impressive marshalling of research and case law with a focus on the Commonwealth but with illuminating reference to state and territory laws as well as to those of the United Kingdom, Canada and New Zealand, and some wider international references. The tables of cases and statutes, invaluable in themselves, reflect this broad approach. Having warned us early on about the dryness of the material, Orr proceeds to engage the reader skilfully, moving quickly across a wide variety of subjects, packing the pages with illustrative detail and citing a wealth of reference material promising more extensive treatment of interesting points he can only touch on briefly in passing. Indeed, for a textbook, the style is almost racy.

As a general introduction to the subject, it is difficult to fault the book. For the advanced practitioner, however, such as electoral commission officials, it will remain a summary (though still eminently useful) treatment of a complex and detailed subject. The author has written widely on the subject elsewhere and has done an excellent job of distilling much legislative history and commentary. He has also avoided the temptation to apply too cynical a perspective to an area of law characterised both by high-minded pursuit of reasonable and fair democratic processes and naked self-interest. To apply the Ciceronian test (cui bono or who benefits?) to almost any electoral amendment Bill is to shine a light on the particular strategies of the party in government to cement its temporary ascendency over its rival parties and tilt the playing field in its favour. It is a relative strength of our system, however, that in most (though not all) cases the Australian electorate calls the shots and government is delivered to the party that obtains a majority of votes overall. In tight finishes like the 2010 federal election, the House of Representatives operates as intended to determine which party will form government. There is now, as Orr acknowledges, very little rorting of electoral boundaries in Australia (and relatively little in historical terms).

On the other hand, I doubt there is any area of the law in which the High Court has second-guessed the Commonwealth Parliament so assertively. The Court’s discovery of an implied constitutional guarantee of freedom of political communication in the Australian Capital Television case is emblematic of the Court’s willingness to enforce high standards of democratic participation, evident in such later cases as Roach v Electoral Commissioner [2007] HCA 43 (on prisoner voting rights) and Rowe v Electoral Commissioner [2010] HCA 46 (on the right to enrol between the issuing of the writ and the close of the roll). The Federal Court has also played its part recently in Getup Ltd v Electoral Commissioner [2010] FCA 869 (a case concerning electronic enrolment).

Although there are relatively few cases of individual malfeasance, the value of the courts in safeguarding the democratic ideal by pursuing potentially systemic rot is a subject worthy of examination and Orr devotes considerable space to it. Not only have the courts been involved in the mechanics of the electoral process at almost all stages (including through ordinary administrative review procedures as well as more tailored remedies such as petitions), they have also largely taken over parliament’s role in determining disputes over its membership. The residual area concerns the right of most parliaments to refer disqualification questions to the courts. Whether or not such decisions are taken often hinges on partisan concerns and, ultimately, numbers. Orr describes the process as ‘unseemly’ but it is simply the point at which the practice of politics takes over, practice protected from the scrutiny of the courts by the separation of powers and the law of parliamentary privilege.

Despite the longevity of the fundamentals, the pace of change in electoral law means that future editions are assured.

ROSEMARY LAING is Clerk of the Senate.

(2011) 36(2) AltLJ 140
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