Skip to content

Ruth Greenwood, A Progressive Court and a Balancing Test: Rowe v. Electoral Commissioner [2010] HCA 46, 14 Univ. W. Syd. L. Rev. 119 (2010).

Abstract: Rowe v Electoral Commissioner is a case about the legislative curtailment of a right. It demonstrates how the French Court intends to deal with constitutional interpretation as well as how it will determine whether a burden on a right is constitutionally valid or not. The right in question in this case is the right to vote, which is, strictly speaking, a statutory right, although it has become such an integral part of the fabric of Australia’s system of representative government, established by the Constitution, that it is treated by the Court as a constitutional right. Even though this case elicited six separate opinions, there is a clear preference by the High Court (five justices to two), in terms of constitutional interpretation, for a progressive or “living force” reading of the constitutional text.