Recognition that the Constitution ‘embeds’ a right to vote and a ‘fully inclusive franchise’

PhilLynch
Human Rights

On 15 December 2010, the High Court of Australia published reasons in Rowe v Electoral Commissioner [2010] HCA 46, having earlier pronounced orders in the matter on 6 August.

The case, heard and determined just prior to the 2010 Federal Election was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (‘The Act’). The Act resulted in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the roll remained open for a period of seven days after the issue of the writ. The Amendment Act was said to reduce the likelihood of fraudulent voter enrolment and promote electoral integrity.

According to the Australian Electoral Commission (‘AEC’), historically the calling of an election has resulted in significant numbers of persons, particularly young Australians, enrolling or changing enrolment during the 7-day period. This period enabled the AEC to advertise and promote enrolment and target particular groups, including Indigenous Australians and people experiencing homelessness. At the 2004 Federal election, approximately 423 000 people enrolled, re-enrolled or updated enrolment during the 7-day period; it was an agreed fact in the proceedings that, for the purpose of the 2010 Federal election, there were approximately 100,000 claims for enrolment received after the cut-off deadlines, but before the date for the closing of the rolls prior to the amending Act.

By a majority of four (French CJ, Gummow, Crennan and Bell JJ) to three (Hayne, Heydon and Keifel JJ), the High Court found the relevant provisions of the Amendment Act were unconstitutional in that they were incompatible with the requirements of ss 7 and 24 of the Constitution that the Houses of Parliament comprise of members ‘directly chosen by the people’.

The challenge to the early close of the rolls was jointly conceived and coordinated by the HRLRC and GetUp! and builds on the previous work of the HRLRC in establishing constitutional protection of the right to vote in the landmark High Court case of Roach v The Commonwealth [2007] HCA 43.

The matter was run pro bono by Ron Merkel QC, Kristen Walker, Fiona Forsyth and Neil McAteer of Counsel, together with Mallesons Stephen Jaques.

PHIL LYNCH is Executive Director of the Human Rights Law Resource Centre.
(2011) 36(1) AltLJ 60
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