Democracy, in all its flaws, passions and intricacies, is the foundation of government. The law on it shapes our experience of electoral democracy. The very question of ‘who’ sets that law is contentious. Should it be set by courts via a constitution, or be the work of partisan but accountable legislators? The Law of Politics is the definitive account of this area. It chronicles and critiques the rules, cases and institutions at play. From voting rights to the framework for free and fair elections and referendums, and from political parties to restraints on money in politics.
Fully revised, this second edition encompasses major developments in the qualifications of members of parliament, voting systems, campaigning and political finance. It also includes a new chapter on local government. Throughout, the law is canvassed in light of the aspirations of liberty, equality, integrity and deliberation, as well as the realities of practical politics.
Foreword by Antony Green AO Click “Foreword” to download free preview
Preface and Acknowledgments
Table of Cases
Table of Statutes
1. Defining the Law of Politics
The Scope and Rationale of this Book
Sources of Law in a Federation
Electoral Law: Overwrought but Underdeveloped
Australian Electoral Regulation: A Potted History
Flux, Malpractice and Trajectories of Reform
What is Electoral Law For?
2. Mapping Parliaments and Weighting Votes
What is a Vote Worth?
Parliamentary Design: Structure and Size
Vote Weighting and One-Vote, One-Value
Redistributions in Australia
Independence: Depoliticising the Redistribution Process
Redistribution Criteria
Litigation and Controversies
3. The Franchise
Voting Rights and Wrongs
The Constitution and the Universality of the Franchise
Qualifications for the Franchise and Reform Debates
A Compulsory Franchise
4. On a Roll
Giving Flesh to the Franchise
The Roll: Privacy, Finality and Closure
From Compulsory to Automatic Enrolment
The Link to Place: Residency and Address
What’s in a Name? Power to Refuse Inappropriate Names
5. Initiating an Election and Qualifications
Elections: When and Who
The Electoral Commissions
Electoral Writs, Timelines and Vacancies
Ballot Access and Nominations
Candidate Qualifications
Disqualifications
The Ramifications of Disqualifications
Reform
6. Political Parties and the Law
Parties: No Longer under the Legal Radar
Court Involvement in Party Affairs
Party Registration, Membership and Naming
Anti-Discrimination Law
Freedom of Association and Juridification
7. Campaigning and Advocacy
On the Hustings
Truth in Political Communication
Misleading Electors in Casting a Vote
Defamation
Offensiveness
Improper Influence and Electoral Bribery
Identification of Material
Rules about Canvassing
Penalties and Time Limits for Offences
‘Horizontal Censorship’
8. Political Broadcasting and the Internet
Campaigning in the Ether
Freedom and Equality: the Breadth and Limits of Constitutional Implications
An Obligation of Balance?
Authorisation of Political Broadcasts
Blackouts and Opinion Polling
Electronic Communication … and ‘Fake News’
9. How We Vote
The How and the How Many
Voting Systems
The Secret Ballot
Where and When We Vote
Counting: Scrutiny and Formality
Safeguarding Elections: Voter ID and the Count
10. Judging Elections: The Role of Courts in Electoral Practice
The Terrain
Disputed Returns and Parliamentary Membership
Grounds of Challenge and the ‘Common Law of Elections’
Injunctions and Administrative Review
11. Money in Politics
Political Finance, Party Finance or Election Finance?
The Genesis of Regulation
The Federal-State Dimension
Financial Disclosure
Donation Limits
Expenditure Limits
Public Funding
Enforcement
Milking Incumbency: MP Allowances and Government Advertising
A Watery Conclusion
12. Local Government
The Nature, Promise and Limitations of Local Government
Indigenous Local Government
Terms and Voting Systems
The Right to Vote and Be a Candidate
Local Government Campaigns and their Finance
Challenging Council Elections and Qualifications
Local Polls and Referendums
13. Referendums and Direct Democracy
Consulting the People
Constitutional Referendums
Key Features and Compulsory Voting at Referendums
Challenging Referendums
Direct Democracy and Plebiscites
Bibliography on The Law of Politics in Australia
Books and Symposia
Articles, Chapters and Research Reports
Index
Reviews of previous edition:
At the heart of any democratic system lie the rules of engagement, the laws that define the who, how, where and when of elections. The law can also strengthen democracy by empowering the weak and circumscribing the powerful. From the basics of elections to the unresolved problems of regulating parties and money, this book sets out the legal framework of politics in Australia. For a country with a long and proud history of open democracy and electoral experimentation, the only surprise is that until now Australia has not had a basic text on the law of politics.
Antony Green, Election Analyst, Australian Broadcasting Corporation
Graeme Orr’s new treatise on Australian electoral law is most welcome and it is likely to be the indispensable reference for decades to come. But it is far more than a reference. Wisdom, common sense, and wit are present on almost every page, together with Orr’s acute analysis and encyclopaedic knowledge of the sources. I had high expectations and Orr exceeded them.
Daniel H Lowenstein, Emeritus Professor UCLA Law School
Comprehensive, insightful and clear, this is undoubtedly the best book yet written on the law of politics in Australia. Not surprisingly, it comes from the nation’s leading authority on electoral law.
Professor George Williams, University of New South Wales
As a textbook, The Law of Politics is an impressive marshalling of research and case law. … 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.
Dr Rosemary Laing, Clerk of the Senate, Alternative Law Journal
Orr’s book is magisterial, and will serve as an invaluable basic reference.
Marian Sawer, Emeritus Professor ANU, Australian Journal of Political Science
