Voting Rights of Expatriates and the Australian Constitution

The Commonwealth Electoral Act 1918 (Cth) limits voting rights of an Australian citizen living overseas. That right will expire after six years’ non-residency(possibly extended). This provision affects hundreds of thousands of Australian citizens. It is potentially at odds with the seriousness with which the High Court takes the universality of the adult franchise, reflected in decisions like Roach v Electoral Commissioner and Rowe v Electoral Commissioner. The Court insisted denial of adult suffrage be for a substantial reason, and be proportionate to a legitimate objective, to be constitutionally valid. This article argues denial of the vote to long-term expatriate Australian citizens may not pass these tests. It then considers an alternative, whether Parliament could pass a law stripping citizenship from long-term expatriates, thus severing their right to vote, which is typically linked with citizenship. It argues there is significant doubt whether a head of power supports such law. There are limits toParliament’s ability to define who is an ‘alien’ for the purposes of s 51(xix), and other heads of power are untested. Further, if the power were exercised by a Minister, it might infringe ch III of the Constitution, given the High Court’s decision in Alexander v Minister for Home Affairs and Benbrika v Minister for Home Affairs.