Electoral Democracy: Australian Prospects

Electoral Democracy:

Australian Prospects

Edited by Joo-Cheong Tham, Brian Costar and Graeme Orr

Contents

Contributors

Acknowledgements

Electoral Democracy: Australian Prospects

Joo-Cheong Tham, Brian Costar and Graeme Orr

Part I—Electoral Systems

1 The Voting Rights of Non-Resident Citizens and Non-Citizen Residents

Peter Mares and Brian Costar

2 Electoral Enrolment in Australia: Freedom, Equality and Integrity

Peter Brent and Rob Hoffman

3 Informal Voting under a System of Compulsory Voting

Lisa Hill

4 Drawing Boundaries: Election Law Fairness and Its

Democratic Consequences

Ron Levy

5 Justifying Designated Parliamentary Seats: International Law and Indigenous Peoples’ Right to Self-Determination

Megan Davis

6 Australian Electoral Administration and Electoral Integrity

Norm Kelly

7 Legal Conceptions of Political Parties through the Lens of

Anti-Discrimination Law

Graeme Orr

Part II—Political Funding

8 Political Party Finance: Themes in International Context

Keith Ewing

9 Equality, Liberty and Integrity and the Regulation of

Campaign Finance

Brian Costar

10 Freedom of Association, Political Parties and

Party Funding

Jeremy Moss and Joo-Cheong Tham

11 Freedom of Political Communication and Its Constitutional Limits on Electoral Laws

Anne Twomey

12 Disclosure, Accountability and the Role of the Media

Sally Young

13 Regulating Electoral Finance in New Zealand, with

Particular Reference to Third Parties

Andrew Geddis

14 Cash for Amendments, Homes and Moats: Standards of Conduct in Westminster

Jacob Rowbottom

Index

Contributors

Peter Brent is a Visiting Fellow at the Australian National University and sits on the Australian Electoral Commissioner’s Advisory Board on Electoral Research. His PhD thesis examined the early history of electoral enrolment in Australia.

Brian Costar is Professor of Victorian State Parliamentary Democracy in the Institute for Social Research at Swinburne University of Technology. He has published widely in the areas of elections and political parties and is the co-author (with Colin A Hughes) of Limiting Democracy: The Erosion of Electoral Rights in Australia (UNSW Press, 2006).

Megan Davis is Associate Professor and Director of the Indigenous Law Centre at the University of New South Wales, where she researches Indigenous issues in public and international law. Megan has significant expertise in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and is currently an Expert member of the United Nations Permanent Forum on Indigenous Issues.  

Keith Ewing is Professor of Public Law at King’s College London. He is the author of a number of books and articles on party funding and campaign financing, including the Cost of Democracy (Hart Publishing, 2007). He has been an adviser to the Labour Party on party funding and now works closely with Labour Party affiliated trade unions on the question, which continues to be controversial in the United Kingdom. He has also been an adviser to the Australian Labor Party.

Andrew Geddis is a Professor at the University of Otago Law Faculty. He is the author of Electoral Law in New Zealand: Practice and Policy (LexisNexis, 2007) and is regularly called on to provide advice on matters of electoral law reform.

Lisa Hill is Professor of Politics in the School of History and Politics at the University of Adelaide. She is a political theorist with an additional interest in electoral studies. Her work on electoral behaviour has appeared in Political Studies, Journal of Theoretical Politics and British Journal of Political Science.

Rob Hoffman is conducting postgraduate research into electoral enrolment practices and reform at the Institute for Social Research, Swinburne University of Technology.

Norm Kelly examined Australian electoral reforms in his doctoral thesis, and as an Associate of the Centre for Democratic Institutions, he works on political training and democracy building projects in countries including Papua New Guinea and the Solomon Islands. Dr Kelly is a former Member of the West Australian Parliament.

Ron Levy is a Lecturer in the Law School at Griffith University. He writes in the areas of legal regulation of the democratic process, constitutional law, and the comparative politics and law of constitutional reform. His recent work focuses on fairness and deliberative democracy in political and legal processes.

Peter Mares is an adjunct research fellow at the Institute for Social Research at Swinburne University of Technology in Melbourne and a journalist and broadcaster. He presents the weekly public policy discussion program The National Interest on ABC Radio National.

Jeremy Moss is Director of the Social Justice Initiative at the University of Melbourne. His main research interests are in political philosophy and moral theory. Current research interests include projects on egalitarian approaches to climate justice and health, as well as ethics and energy security. He is the recipient of the Eureka Prize for Ethics and several Australian Research Council Grants including an ARC Future Fellowship.

Graeme Orr is an Associate Professor at the University of Queensland law school, specialising in the regulation of politics. He has both mapped the domain in The Law of Politics (Federation Press, 2010), and explored its interesting by-ways, including the conception of electoral bribery, the nature of political deals, the relationship of symbols and language to the law of democracy, and the ritual element in elections.

Jacob Rowbottom is a Lecturer in the Faculty of Law, University of Cambridge, and Fellow of King’s College, Cambridge. He is the author of Democracy Distorted (Cambridge University Press, 2010) and has written on the regulation of the political process, the media and freedom of expression.

Joo-Cheong Tham is an Associate Professor at the Melbourne Law School. He has written extensively on the regulation of political funding in Australia and is the author of Money and Politics: The Democracy We Can’t Afford (UNSW Press, 2010). He also specialises in the regulation of non-standard work, in particular, casual and temporary migrant work.

Anne Twomey is an Associate Professor at the University of Sydney Law School, where she lectures in Public Law and Federal Constitutional Law. She has previously worked for the High Court of Australia, the Commonwealth Parliament and the Cabinet Office of NSW. She wrote a report for the NSW Government in 2008 on ‘The Reform of Political Donations, Expenditure and Funding’.

Sally Young is a Senior Lecturer in the School of Social and Political Sciences at the University of Melbourne. Her latest book is How Australia Decides: Election Reporting and the Media (Cambridge University Press, 2011).

Acknowledgements

This collection is the result of a workshop held in November 2009.Chapters were finalised as of the beginning of November 2010, and hence could only take account of developments in this ever-evolving field prior to that time.

The workshop was funded by a Melbourne University Social Justice Initiative grant and organised with assistance from the Centre for Employment and Labour Relations Law, Melbourne Law School. It brought together academics, electoral administrators and political practitioners; the input of the latter two groups was invaluable. The Institute for Social Research, Swinburne University provided help with the editing of the book, and the editors thank David Hudson for his expert assistance.

Electoral Democracy: Australian Prospects

Joo-Cheong Tham, Brian Costar and Graeme Orr

Electoral Regulation and Democratic Principles

This is a book on electoral regulation. On one level, it deals with this topic in the manner it is commonly perceived: electoral regulation is dissected according to its technical and intricate details. On another level—and this is the central thrust of the collection—these details are viewed against three key democratic principles of integrity in government, equality and fairness and liberty and freedom. A crucial premise informing the conception and content of the book is that electoral regulation, bristling as it is with technicalities and minutiae, cannot be fully grasped without being firmly grounded in these principles. Another premise, and one that is highlighted by each chapter, is that these principles do not yield straightforward answers or conclusions. Complexity abounds with tensions between these principles, differing conceptions of these principles and application of these principles varying according to contexts.

Whilst not purporting to be a comprehensive smorgasbord or reform agenda,¹ the book canvasses problems and proposals in a range of areas that are proving of perennial concern. These are grouped in two broad sections: electoral systems and political funding (though it should be noted that chapters dealing with party affairs straddle that divide). This collection complements more detailed recent works by two of us: one, The Law of Politics: Elections, Parties and Money in Australia, presents a detailed account of the law and cases in that field;² the other, Money and Politics: The Democracy We Can’t Afford, gives a thorough and critical account of the pathologies of political finance.³ The chapters here appear at a propitious time, with a minority federal government agreeing to progress an agenda of political reform and, in New South Wales, the first legislation in Australia’s history offering root and branch regulation of political finance.

Electoral Systems

The first part of the book deals with electoral systems (voting rights, enrolment and voting systems, electoral boundaries and electoral administration). Chapter 1 by Peter Mares and Brian Costar explores the key question of the franchise. Whilst voting in Australia may be compulsory, it is also both a fundamental right in the form of an expressive liberty and as an imperative of political equality (through the principle of one person, one vote). Mares and Costar focus on residency and citizenship requirements as limitations on the ability to vote, and ask whether these are unduly restrictive. Whilst restrictions on the ability of expatriate Australian citizens to vote are relatively strict by international standards, the authors caution that claims by expatriate Australians to equality with resident citizens require scrutiny. However, they are more sympathetic to the ‘living in a political community’ argument that permanent residents in Australia might deserve the vote (and even consider the plight of long-term temporary residents).

Whilst necessary, enfranchisement is not sufficient for an individual to be able to vote. A crucial step is enrolment and it is this aspect of electoral regulation that forms the focus of the chapter by Peter Brent and Rob Hoffman. Their starting point is the startling

estimate by the Australian Electoral Commission that there are 1.2 million eligible, domiciled Australian citizens who are currently unenrolled despite a system of compulsory enrolment being in place since 1911. This clearly poses challenges to political equality and the integrity of the electoral roll. Brent and Hoffman analyse the key causes of this problem, drawing attention to a mismatch of technologies, and call for the adoption of systems of automatic enrolment as a solution.

The following chapter by Lisa Hill examines the phenomenon of informal voting under Australia’s system of compulsory voting: should it be viewed as an exercise of political freedom or as a form of disenfranchisement undermining political equality? The answer to this question turns on the causes of informal voting, a topic that is examined by Hill. Her chapter emphasises that although some electors deliberately vote informal as a political protest, 75 per cent of invalid ballots are unintentional, thereby effectively disenfranchising those unable to enter a sequence of numbers accurately or completely. Other factors influencing the level of informal voting are also identified: the number of candidates on the ballot paper, the proportion of voters who are not fluent in English and different types of voting systems at federal and state levels.

The chapter by Ron Levy explores the principles that might guide electoral ‘mapmaking’, an area strewn with examples of unfair attempts by incumbents to entrench themselves in office, effectively corrupting the fair election ideal with unequal measures. A simple ‘one vote, one value’ equality rule is not enough, because gerrymandering remains possible within otherwise vague guidelines that constituencies should encompass ‘communities of interest’. As alternatives, Levy advances three concepts of fairness—perfectionist, positive and negative—and considers Australia’s through an international perspective.

In the next chapter, Megan Davis considers the justifications for parliamentary seats designated for Indigenous Australians. She documents how debates in this area veer between claims of formal equality (in which Indigenous political voices are assimilated—and swamped—by a dominant colonising culture) and substantive equality. Rather than grounding Indigenous parliamentary seats in either notion of equality, Davis argues that their basis lies in self-determination. Indigenous Australians, as a set of unique peoples, have distinct and inherent rights to participate in decision-making affecting their communities, a right to self-determination that has been recognised in the United Nations Declaration on the Rights of Indigenous Peoples.

Chapter 6 by Norm Kelly examines electoral commissions, administrative institutions that are crucial to ‘free and fair elections’. He focuses on mechanisms to ensure their institutional integrity, in particular their independence and freedom from partisan influences that would erode their ability to treat different political actors equally. He argues that although the Australian Electoral Commission and its equivalents mostly deserve the high international accolades bestowed upon them, they fall short of full independence in a number of respects. In particular, they lack any real regulatory, as opposed to administrative, powers. Kelly also examines the commissions’ achievements in terms of the integrity of the voting system, and examines the threat to integrity posed by non-attendance voting and the continuing role of parties in postal voting.

The final chapter in the part relating to electoral systems is by Graeme Orr. The subject matter of this chapter is political parties, one of the principal—some would say, the principal—set of actors in Australian electoral systems. To what extent should their internal affairs be regulated? Orr takes up this question by examining the tension between anti-discrimination law, a key legal measure to advance equality, and party autonomy grounded in commitments to freedom of association. He charts the previously neglected anti-discrimination cases and statutory law concerning the ‘internal affairs’ of political parties, in both Australia and the UK. His central claim is that there is only a limited case for intervention in party affairs, based not so much on freedom of association but on a concern for a competitive political space.

Political Funding

The second part of the book deals with political funding (funding of political parties, candidates and third parties, whether through private sources or public money). It opens with a chapter by Keith Ewing who draws out the key themes of political funding at two levels: the objectives of regulating such funding and the regulatory measures to be adopted. For Ewing, the key aims of regulation are minimising exposure to corruption and conflicts of interest, promoting ‘fair competition’ and adequately funding political parties. Whilst emphasising that different political cultures and systems will adopt a different menu of regulatory options, Ewing argues that transparency and caps on expenditure are the key mechanisms, though not caps on donations per se which he sees as too easily

circumvented. He also argues for a ‘clear and compelling role’ for some public financing both to reduce reliance on potentially corrupting donations and to help achieve ‘fair competition’, although

he cautions that with state subventions ‘less rather than more would be better’.

The chapter by Brian Costar focuses more specifically on the Australian situation. His starting point is the libertarian character of Australia’s political funding regime—there are generally no limitations on contributions and spending, with disclosure and modest public funding the central regulatory measures. Such a regime has, according to Costar, witnessed an ‘arms race’ amongst the big political parties which undermines the principle of political equality. Also flourishing under this regime are ‘some ethically dubious and politically undesirable fund-raising practices’ which not only subvert the principle of political equality by selling access but also raise the real risk of corruption.

In their following chapter, Jeremy Moss and Joo-Cheong Tham consider the relationship between freedom of association and the regulation of party funding. They begin by noting that freedom of association is often understood as standing for a policy of non-intervention into the affairs of freely formed associations like political parties. Against such views, Moss and Tham argue that there is a case for regulating political parties based on their democratic functions. However, they take issue with a group of arguments that seek to provide a presumptive answer to the question of whether or not to regulate political parties based on a classification of parties as either public or private organisations. The chapter concludes with some preliminary remarks on how to regulate party funding.

The next chapter also takes up the theme of political freedom, this time in relation to the key way in which political funding is spent, political communication. Under the Australian constitution, there is no express provision protecting the freedom to engage in such communication. The High Court has, however, held that there is an implied freedom of political communication. It is this freedom and its impact on electoral laws that is examined by Anne Twomey. Her chapter looks at the impact of the implied freedom on three types of regulation: regulation of the means of political communication, regulation of the content of political communication and regulation of the capacity to engage in political communication. Twomey concludes that in each area, laws may impose a burden on political communication, but such laws may still be valid if they are appropriately balanced to achieve other legitimate aims.

In her chapter, Sally Young examines the role of the media in ensuring adequate disclosure and accountability in the area of political funding. A key assumption about the efficacy of political disclosure laws is that the media will play an active role in stimulating public scrutiny and accountability. Young challenges this assumption by charting the external and internal impediments to such a role being performed by the Australian media, drawing attention to constraints stemming from its ownership, audiences and aims. This broader discussion is accompanied by specific case studies (of the February disclosure ritual, government advertising and parliamentary entitlements). Young concludes that whilst there are ‘examples of informative and in-depth coverage of political accountability issues’, ‘this type of reporting was sporadic and … highly concentrated in the broadsheet outlets’, media coverage that she emphasises should be taken into account in any proposal to reform political funding regulation.

The final two chapters provide overseas perspectives on the question of political funding. Andrew Geddis examines the regulation of electoral funding in New Zealand, with specific attention to ‘third parties’ (political groups other than political parties that participate in election campaigns). He begins by noting five goals for regulation: preventing corruption, promoting equality, ensuring adequate funding of parties and candidates, promoting political participation and protecting freedom. Regulation of third parties implicates the aims relating to corruption, equality and freedom with sharp tensions at times between the considerations of equality and freedom. The chapter illustrates how the relationship between these goals can play out through its examination of recent attempts in New Zealand to regulate third parties, in particular, the registration requirement and spending limits placed by the Electoral Finance Act 2007 on third parties and the Electoral (Finance Reform and Advance Voting) Bill which seeks to repeal the spending limits. The chapter is replete with relevance for Australia’s consideration of expenditure caps.

Finally, Jacob Rowbottom’s chapter deals with the controversy that engulfed Westminster parliamentarians in 2009, a controversy which not merely shook the ‘mother of parliaments’ but which has lessons for every system of parliamentary entitlements, including Australia’s. Rowbottom first distinguishes between two types of complaints made in this episode: those relating to the use of public funds (specifically, parliamentary allowances by MPs) and those relating to the receipt of private funds by MPs. He then proceeds to analyse these complaints through the concept of corruption, defined here as ‘the misuse of public power for private benefit’, drawing out when there was corrupt conduct (and why). Rowbottom ends by cautioning that public outrage over the misuse of public funds should not obscure the need for such funds to insulate parliamentarians from the influence of private wealth, and that reduction (or elimination) of public funding may very well lead to the more harmful effects of private money.

Notes

1 For that, one might consider the suggestions floated in each of the Rudd government’s Green Papers: Australian Government: Electoral Reform Green Paper: Donations, Funding and Expenditure (December 2008) and Australian Government, Electoral Reform Green Paper: Strengthening Australia’s Democracy (September 2009).

2 Graeme Orr, The Law of Politics: Elections, Parties and Money in Australia, Federation Press, Sydney, 2010.

3 Joo-Cheong Tham, Money and Politics: The Democracy We Can’t Afford, UNSW Press, Sydney, 2010.

Part I

Electoral Systems

Chapter 1

The Voting Rights of Non-Resident Citizens

and Non-Citizen Residents

Peter Mares and Brian Costar

As is well known, the vote was originally granted by right of property ownership which rendered it justiciable. But the fatal flaw in the connection was pointed out by Thomas Paine late in the 18th century:

You require that a man have $60 worth of property, or he shall not vote. Very well, take an illustration. Here is a man who today owns a jackass, and the jackass is worth $60 and he goes to the polls and deposits his vote. Tomorrow the jackass dies. The next day the man comes to vote without his jackass and he cannot vote at all. Now tell me, which was the voter, the man or the jackass? (Common Sense, 1776)

Australasia led the world in extending the vote beyond the historical confines of male property owners, though Maori were treated much better in that regard than Indigenous Australians. However, a combination of constitutional developments and changing patterns of immigration and emigration has created new challenges in elector entitlement. It is commonly believed that citizenship brings with it a right to the franchise, but the question is more complicated than that, at both a theoretical and an operational level. Citizenship was an enlightenment, liberal concept first given political form through the American and French revolutions. Democracy, including an inclusive franchise, was added later—and, in some western states, much later than is often believed.¹ Citizenship and liberalism have traditionally operated within nation states and that reality has affected the granting and non-granting of the franchise either to domiciled and expatriate citizens or ‘resident aliens’.

Globalisation, multiculturalism, dual nationality and the free and forced movements of peoples have upset once settled notions of statehood and offer challenges to the democratic values of the Australian electoral system first laid down in 1902 in the Commonwealth Franchise Act and Commonwealth Electoral Act and later combined as the Commonwealth Electoral Act 1918 (CEA). Communitarian critics of liberalism read down the nexus between citizenship and the franchise and wish to connect the right to vote to belonging to a political community, regardless of ‘citizenship’ status.² Under this view, permanent residence within the boundaries of the nation state takes priority over civic status as the determinant of the right to vote. Australia’s electoral arrangements combine liberal (citizenship) and communitarian (residency) elements as necessary and exclusive conditions of the right to the franchise. Historical circumstances have created anomalies and exceptions to this rule but, in general, Australia denies the vote both to many non-resident citizens and to almost all non-citizen residents.

Voting Rights of Non-Resident Citizens

In international comparison, Australia’s electoral law is relatively restrictive in its treatment of overseas-located electors. In some jurisdictions, notably the United States, voting and citizenship are so intertwined that extended absence from the homeland has no impact on the franchise. US citizens 18 years or older residing outside the US can register to vote ‘absentee’ in their last ‘legal state of residence’ regardless of whether or not they own property or have other ties to that state or whether they have any intention to return there. Registration for an enduring absentee ballot remains valid for a period of two general elections. In short, US citizens may spend their entire adult life outside the US without losing their right to register to vote and to cast a ballot. Some states allow voting by US citizens who have never lived in the US (such as the adult children of US citizens born overseas).3 Conversely, Americans take very seriously the constitutional requirement that the president must be a ‘natural born citizen’ and prior to the 2008 election the Senate felt it necessary to declare that the Republican nominee Senator John McCain, who was born in the Panama Canal Zone, was eligible to run for the presidency.⁴

Italy extends the franchise even further, though in a very different manner. It provides specific representation for non-resident Italians, regardless of how tenuous their connection with the motherland has become. In 2006, Italy set aside eighteen parliamentary seats (twelve members of the House of Deputies and six Senators) to be elected by non-resident Italians based in four overseas electorates (Europe, North America, South America and the rest of the world). Approximately 3.5 million Italian citizens live outside Italy and, although many are first generation migrants with direct and personal connections to their homeland, a growing proportion were born abroad and have always lived outside Italy. Their right to citizenship (and to cast a ballot) is passed down through the generations, ius sanguinis, as an inheritance and bears no relationship to their physical presence in the Italian nation, nor any necessary connection to any lived experience of Italian language and culture.5 While this might appear at first glance to be a quaintly symbolic but politically insignificant arrangement (eighteen expatriate seats out of a total of 927 parliamentarians), in 2008 the centre-left Prodi government fell after narrowly losing a no-confidence vote, in part because Luigi Pallaro, Italy’s Senator for South America, failed to turn up to support the government in the chamber.6

Australia’s electoral system is far more restrictive. The Australian Electoral Commission (AEC) advises citizens who are departing Australia ‘permanently or indefinitely’ that they are ‘not eligible to remain enrolled’ and must request to be removed from the roll.7 Citizens moving overseas or already residing abroad can apply to be treated as an ‘eligible overseas elector’ (a status created in 1983), but only if they ‘intend’ to return to live in Australia within six years.8 If they have already lived overseas for three years or more then they are not eligible to re-join the roll, unless they return to Australia for a period of at least one month.9 Complex rules governing overseas electors are set out in ss. 94–95 of the CEA, and the key electoral criterion of connection with place (residency overseas or living at a residential address in Australia) can be fuzzy, even though in practice they are at least as important as citizenship. The Southern Cross Group (SCG), which advocates on behalf of Australian expatriates, estimates that as a result of these restrictions and complexities, fewer than one in ten adult Australians living overseas participates in elections. The voting rate for long-term expatriates would be much lower, since 80 per cent of the ballots issued overseas go to Australians who are only temporarily absent from the country for holiday or business purposes.10 There is uncertainty as to what is meant by ‘temporarily absent’ and, in what in other respects is an inclusive franchise, it is commonplace for Australians to lose the right to vote while out of the country.

The SCG has two fundamental complaints about the current legislative and bureaucratic arrangements for voting by expatriate Australians. The first is essentially procedural: that expatriates are largely unaware of their rights as overseas voters (or of what they need to do to maintain those rights) and that the AEC has done little in the way of education or outreach to change this. The AEC has identified ‘eligible voters’ as its ‘primary customers’. However, many expatriate Australians fall outside this group, since they have already been removed from the electoral roll (even if this removal was unwanted or inadvertent). The SCG believes that the AEC could do more to prevent expatriate voters falling outside the system in this way: ‘Intending expats, those expats [still] on the electoral roll and those who are not on the roll but who left Australia within the last three years are all eligible voters’ and, as such, ‘they are primary AEC customers, and appropriate resources need to be spent on them’.11 The SCG suggests that the AEC should ‘actively’ provide departing citizens with basic guidance on their voting rights before they leave Australia, ‘most logically at international departure terminals, although other avenues are also available’.12 (Another appropriate vehicle might be in response to passport applications.)

Young voters (those aged 18–25) are more likely than other age groups to fail to enrol or to be removed from the electoral roll. As of 30 June 2008 only 82 per cent were enrolled, compared to a general rate of 92.2 per cent for all age groups.13 The SCG points out that ‘a large proportion of the present and future diaspora is young, and its age demographic is much younger than that of the resident Australian population’. It also quotes research suggesting that ‘many young voters remain non-voters’ as they grow older.¹⁴ On this basis, the SCG claims that targeting expatriate Australians with information about their electoral rights and responsibilities would be money well spent by the AEC in advancing and expanding democratic participation.

The second and more fundamental complaint of the SCG is legislative: that the law is overly restrictive and limits the franchise in ways inconsistent with the highly mobile and internationally engaged nature of the Australian population in the twenty-first century, and it also restrains what the AEC can do to remedy the situation. As the Senate Legal and Constitutional References Committee discovered, reliable statistics on the exact size of Australia’s expatriate population are difficult to find (partly because of the practical difficulty of counting numbers and partly for definitional reasons).15 Nevertheless, it is likely that up to one million Australians are overseas at any one time, many for the long term. If we assume that three-quarters of these are of voting age, then this is a potential voting population of 750 000. This equates to the enrolment population of seven federal electorates, enough to change government in a close contest. Of these three-quarter of a million potential voters, only 22 584 were registered as overseas electors on the eve of the 2007 election and only 70 057 votes were cast from outside Australia—the difference being those who were temporarily overseas on polling day but who retained a domestic enrolment.

If, as the SCG suggests, it is time to reform the law to make expatriate voting easier, then this raises some fundamental questions. The current limitations (an intended absence of fewer than six years to be eligible to enrol as an overseas voter and a ban on enrolling from overseas after an absence of three years or more) are clearly arbitrary. But would an alternative set of rules—setting limitations at, say, ten years—be any less arbitrary? Is physical separation from the territory of Australia a reliable indication of waning emotional