Rowe V Electoral Commissioner Case Study

This paper discusses about the recent case, Rowe v Electoral Commissioner [2010] 273 ALR 1 (hereafter Rowe), related with the notions of representative government and representative democracy. Through the discussion of the case, this paper also analyses its significance in Australia.

Representative Government & Representative Democracy

The notion of representative government distinguishes from the notion of representative democracy. McHugh J in Theophanous said that representative democracy describes a society where an equality of rights is existed. In McGinty, it also pointed that the notion of representative democracy requires the people to have an ‘equal electorate’.

In contrast, the representative government indicates where the people can freely vote for representatives exercising governmental powers on behalf of the people’s interests. Dawson J also stated that representative government needs people to elect freely their representative as a minimum requirement. In recent judgments in Australia, the two concepts are interchangeable. However, the notion of representative democracy seems a bit broader than the notion of representative government.

Sections 7 and 24 of the Commonwealth Constitution confer an implied right to vote. This interpretation comes from that the people elected to be the members of the Senate and the House of Representative are defined as ‘directly chosen by the people’. In other words, the equal electorate needs for the people who participate in elections to express their wills through their representative. Accordingly, the implied right is consistent with the definitions of representative democracy and representative government. The following case, Rowe, is considered the both notions, bu...

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... limitation is necessary. In addition, it is being seen as taking account every history and context of the case in making decisions, rather simply judging the case according to the words of provisions. Gleeson CJ in Roach also stated the consideration that the historical context and circumstances in the case is also protected by the sections 7 and 24 of the Constitution. Therefore, the decision of the Rowe is consistent with the Constitution’s implied right and the notion of representative democracy in Australia.

Conclusion

This paper concludes with that Rowe is an important case for Australia representative democracy because it underlines the implied right to vote supported under sections 7 and 24 of the Constitution along with the previous case, Roach. It also defines the importance of the equal electorate to maintain the representative democracy as well.