HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJSHANNEN ALYCE ROWE & ANOR PLAINTIFFS
AND
ELECTORAL COMMISSIONER & ANOR DEFENDANTS
Rowe v Electoral Commissioner [2010] HCA 46
Date of Order: 6 August 2010
Date of Publication of Reasons and Further Order: 15 December 2010
M101/2010ORDER
1.Declare that Items 20, 24, 28, 41, 42, 43, 44, 45 and 52 of Sched 1 to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) are invalid.
2.The second defendant to pay the plaintiffs' costs of the Further Amended Application for an Order to Show Cause.
FURTHER ORDER
3.Dismiss so much of the plaintiffs' application as remained after the order of this Court made on 6 August 2010.
Representation
R Merkel QC with K L Walker, F K Forsyth and N McAteer for the plaintiffs (instructed by Mallesons Stephen Jaques)
G T Johnson for the first defendant (instructed by Australian Government Solicitor)
S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett and D F O'Leary for the second defendant (instructed by Australian Government Solicitor)
R M Mitchell SC with C S Bydder intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor's Office)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Rowe v Electoral Commissioner
Constitutional law (Cth) – Legislative power – Franchise – Constitutional limitations upon power of Parliament to regulate exercise of entitlement to enrol to vote – Date for close of Electoral Rolls in Commonwealth Electoral Act 1918 (Cth) amended – Amendments precluded consideration until after election of claims for enrolment received after 8 pm on date of writs and of claims for transfer of enrolment received after 8 pm on third working day after date of writs – Whether denial of enrolment effected by amendments contravened constitutional requirement that representatives be "directly chosen by the people" – Whether amendments operated as disqualification from entitlement to vote and, if so, whether disqualification for substantial reason – Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162.
Words and phrases – "directly chosen by the people", "disqualification", "substantial reason".
Constitution, ss 7, 8, 9, 10, 24, 30, 31, 51(xxxvi).
Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), Sched 1 Items 20, 24, 28, 41, 42, 43, 44, 45, 52.
Commonwealth Electoral Act 1918 (Cth), ss 93, 94A(4), 95(4), 96(4), 101, 102(4), 102(4AA), 155.FRENCH CJ.
Introduction
The Constitution requires that members of Parliament be "directly chosen by the people"[1]. That requirement is "constitutional bedrock"[2]. It confers rights on "the people of the Commonwealth" as a whole[3]. It follows, as Isaacs J said in 1912, that[4]:
"The vote of every elector is a matter of concern to the whole Commonwealth".
Individual voting rights and the duties to enrol and vote are created by laws made under the Constitution in aid of the requirement of direct choice by the people.
[1]Constitution, ss 7 and 24.
[2]Roach v Electoral Commissioner (2007) 233 CLR 162 at 198 [82] per Gummow, Kirby and Crennan JJ; [2007] HCA 43.
[3]Langer v The Commonwealth (1996) 186 CLR 302 at 343 per McHugh J; [1996] HCA 43.
[4]Smith v Oldham (1912) 15 CLR 355 at 362; [1912] HCA 61.
An electoral law which denies enrolment and therefore the right to vote to any of the people who are qualified to be enrolled can only be justified if it serves the purpose of the constitutional mandate. If the law's adverse legal or practical effect upon the exercise of the entitlement to vote is disproportionate to its advancement of the constitutional mandate, then it may be antagonistic to that mandate. If that be so, it will be invalid. Laws regulating the conduct of elections, "being a means of protecting the franchise, must not be made an instrument to defeat it"[5]. As the Court said in Snowdon v Dondas[6]:
"The importance of maintaining unimpaired the exercise of the franchise hardly need be stated."
[5]An observation made by Isaacs J about the ballot in Kean v Kerby (1920) 27 CLR 449 at 459; [1920] HCA 35.
[6](1996) 188 CLR 48 at 71; [1996] HCA 27, immediately thereafter quoting the remark of Isaacs J in Kean v Kerby (1920) 27 CLR 449 at 459.
The laws under challenge in this case would have disentitled persons otherwise qualified to be enrolled as electors before the election conducted on 21 August 2010 from recording a vote at all or from recording a vote for the district in which they lived. That disentitlement would have flowed from the failure by those persons to lodge claims for enrolment before the issue of the writs or for transfer of enrolment before the close of the Rolls. A statutory grace period of seven days for claims to be made after the issue of the writs had existed since 1983. Until 1983 an effective, albeit non-statutory, grace period had existed in all elections called since the 1930s by reason of the executive practice of announcing an election some days before the issue of the writs. The statutory grace period was effectively removed for new enrolments and significantly abridged for transfers of enrolment by the impugned amendment of the Commonwealth Electoral Act 1918 (Cth) ("the CEA") in 2006. On 6 August 2010, I joined in a majority of the Court in making a declaration that the relevant provisions of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the Amendment Act") were invalid. My reasons follow.
The declaration claimed and the grounds for the claim
The plaintiffs claimed a declaration in the following terms:
"A declaration that items 20, 24, 28, 41, 42, 43, 44, 45 and 52 of Schedule 1 of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) are invalid and of no effect."
The grounds for relief were that:
"The items referred to in paragraph 1 of the prayer for relief are:
(c) contrary to ss 7 and 24 of the Constitution;
(d)beyond the legislative powers of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution or any other head of legislative power; and
(e)beyond what is reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government;
and are therefore invalid and of no effect."
The constitutional provisions
Section 7 of the Constitution of the Commonwealth requires that the senators for each State be "directly chosen by the people of the State". Section 24 requires that the members of the House of Representatives be "directly chosen by the people of the Commonwealth".
When the Commonwealth Constitution came into effect in January 1901, the qualification of electors of members of the House of Representatives was, by operation of s 30, that prescribed by State law as the qualification of electors of the more numerous House of Parliament of each State. Section 8 prescribed that the qualification of electors of members of the House of Representatives was the qualification of electors of senators. There was a transitional "constitutional franchise"[7]. Section 30 was to apply until the Commonwealth Parliament otherwise provided. In addition, by ss 10 and 31, until the Parliament of the Commonwealth otherwise provided, the laws in force in each State relating to elections for the more numerous House of the Parliament of the State, as nearly as practicable, applied to elections of senators for the State and of members of the House of Representatives. The Parliament of the Commonwealth was also empowered to make laws prescribing the method of choosing senators, but so that such method should be uniform for all States[8].
[7]R v Pearson; Ex parte Sipka (1983) 152 CLR 254 at 278 per Brennan, Deane and Dawson JJ; [1983] HCA 6.
[8]Constitution, s 9.
The words "[u]ntil the Parliament otherwise provides" in ss 10, 30 and 31 attract the power conferred upon the Parliament by s 51(xxxvi) to make laws "with respect to … matters in respect of which this Constitution makes provision until the Parliament otherwise provides". Read with s 30, s 51(xxxvi) empowers the Parliament to make laws providing for the qualification of electors of members of the House of Representatives. By operation of s 8 those qualifications are also the qualifications of the electors of senators. Read with ss 10 and 31, s 51(xxxvi) also empowers the Parliament to make laws relating to the election of senators and members of the House of Representatives. Those powers are exclusive to the Commonwealth[9]. Isaacs J characterised the power to make laws with respect to elections as a "plenary power over federal elections"[10]. To say that of the power under s 51(xxxvi) is to say what is true of every power conferred by s 51[11]. It is a power subject to the limitations imposed by the Constitution. The exercise of that power is in issue in this case.
[9]Smith v Oldham (1912) 15 CLR 355 at 358 per Griffith CJ, 360 per Barton J.
[10]Smith v Oldham (1912) 15 CLR 355 at 363.
[11]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 604-605 per Gummow J; [1997] HCA 38.
Parts II and III of Ch I of the Constitution contain other provisions relating to elections for the Senate and the House of Representatives, including provision for the issue, by the Governor-General, of writs for general elections of members of the House of Representatives[12] and for the issue by State Governors of writs for elections of senators for the States[13]. Section 41 protected the electors for the more numerous Houses of Parliament of the States from being prevented, by any law of the Commonwealth, from voting at elections for either House of the Parliament of the Commonwealth. That provision, however, has no effect on the present case as it only protects rights to vote which were in existence at Federation[14].
[12]Constitution, s 32.
[13]Constitution, s 12.
[14]R v Pearson; Ex parte Sipka (1983) 152 CLR 254 at 261 per Gibbs CJ, Mason and Wilson JJ, 278-279 per Brennan, Deane and Dawson JJ.
The statutory franchise
Under the Constitution, the Commonwealth Parliament was to decide whether and when to pass laws defining the qualifications of electors and the methods of election. This it did by enacting the Commonwealth Franchise Act 1902 (Cth) and the Commonwealth Electoral Act 1902 (Cth). By the former Act it created a "statutory franchise"[15] which replaced the constitutional franchise. Having defined the qualifications of electors, the Parliament could validly impose conditions upon the exercise of the right to vote which were incidental to or in aid of the laws defining the qualifications or embodied in laws relating to the election of senators and members of the House of Representatives.
[15]R v Pearson; Ex parte Sipka (1983) 152 CLR 254 at 278 per Brennan, Deane and Dawson JJ.
The Commonwealth Franchise Act 1902 and the Commonwealth Electoral Act 1902 and their successor statutes were enacted against the background of colonial laws defining the franchise, identifying those entitled to exercise it and providing for the conduct of elections. Not surprisingly those laws and their provision for voter enrolment as a condition of the right to vote were inspired by the electoral laws of the United Kingdom.
The registration and listing of qualified electors on an electoral roll or list, as a condition of the exercise of the right to vote, was introduced in England and Wales by the Representation of the People Act 1832[16]. Until 1832 a person wishing to vote "appeared at the poll, tendered his vote, and then and there swore an oath prescribed by statute to the effect that he had the requisite qualification"[17]. The 1832 Act was also the first step in a process of simplification and extension of what was a complex and restrictive franchise[18]. That complexity generated delays in electoral processes caused by the need, absent an electoral roll, to verify the identity and qualification of persons claiming to be entitled to vote. The purpose of registration therefore was "not so much to prevent fraud or to secure the rights of the bona fide electors, as to decrease the expense of elections"[19]. Legislative changes were made after 1832[20]. Further reform statutes were passed in 1865 and 1867[21]. Loss of voting rights for failure to comply with registration requirements was substantial. Registration was evidently a burdensome process and from the point of view of some electors: "the privilege of voting was not worth the pains"[22]. A common register was established in 1878 for parliamentary and municipal electors[23]. By the Registration Act 1885[24] the process of registration in counties was assimilated to that of boroughs and a uniform system put in place[25]. The system operated more smoothly after that time[26]. As appears from the history, the purpose of registration was practical and directed to dealing with the consequences of the complicated and diverse qualifications required for a person to become an elector.
[16]2 & 3 Will IV c 45, s 26.
[17]Maitland, The Constitutional History of England, (1908) ("Maitland") at 355.
[18]There were distinct county and borough franchises: see Anson, The Law and Custom of the Constitution, 4th ed (1909), vol 1 ("Anson") at 101-103, 105-109; Maitland at 351-357.
[19]Seymour, Electoral Reform in England and Wales, (1915) ("Seymour") at 107.
[20]Seymour at 118.
[21]County Voters Registration Act 1865 (28 & 29 Vict c 36); Representation of the People Act 1867 (30 & 31 Vict c 102); Seymour at 160.
[22]Seymour at 163.
[23]Seymour at 375-376.
[24]48 & 49 Vict c 15.
[25]Seymour at 376; Anson at 132-133.
[26]Seymour at 380-381.
The relationship of registration to the franchise and the franchise to the qualification to vote was viewed in different ways by constitutional scholars. Sir William Anson characterised registration as "a condition precedent to the exercise of the right to vote" and as "preliminary to the enjoyment of the franchise"[27]. He applied the term "the Franchise" to the right to vote for members of the House of Commons[28]. He acknowledged that the term was also applied to the qualification which confers the right to vote. Maitland, on the other hand, said that "the only qualification that (in strictness) entitles one to vote is the fact that one is a registered elector"[29]. Quick and Garran, summarising the "qualifications of electors" under State laws at Federation, applied the term primarily to requirements such as gender, age and status as a natural-born or naturalised British subject but at one point appeared to include enrolment as a qualification[30]. The Commonwealth Franchise Act 1902 defined the class of persons entitled to vote by reference to age, residence, status as a natural-born or naturalised British subject, and enrolment for the Electoral Roll for any Electoral District[31]. The proposition that a person enrolled fell within the statutory term "qualified to vote" and was thereby entitled to sign an election petition was endorsed by Brennan ACJ in Muldowney v Australian Electoral Commission[32]. The right to vote conferred by s 93 of the CEA was then, as it is now and has been since the Commonwealth Franchise Act 1902, dependent upon enrolment[33]. Mason CJ in Re Brennan; Ex parte Muldowney[34] thought s 93 prescribed "qualifications to be enrolled and to vote respectively". What Brennan ACJ said in Muldowney v Australian Electoral Commission was endorsed in Snowdon v Dondas[35].
[27]Anson at 134.
[28]Anson at 101.
[29]Maitland at 355.
[30]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 469-470. The authors made a distinction between qualification and enrolment in their summary of the laws of New South Wales, Queensland and Western Australia, but elided the distinction in the summary relating to South Australia.
[31]Commonwealth Franchise Act 1902, s 3.
[32](1993) 178 CLR 34 at 40; [1993] HCA 32. The term "qualified to vote" appears in s 355(c) of the CEA, which defines the entitlement to sign a petition disputing an election.
[33](1993) 178 CLR 34 at 39 per Brennan ACJ.
[34](1993) 67 ALJR 837 at 839; 116 ALR 619 at 623; [1993] HCA 53.
[35](1996) 188 CLR 48 at 72.
The Australian colonies enjoyed a faster evolution towards democratisation than the United Kingdom[36]. Universal manhood suffrage was adopted in South Australia with the introduction of responsible government[37]. Victoria and New South Wales followed suit in 1857 and 1858[38]. The same franchise was introduced in Queensland in 1885 and Western Australia in 1893[39]. Tasmania introduced it in 1901[40]. The franchise was extended to women in South Australia in 1895 and Western Australia in 1900[41]. Soon after Federation women in the remaining States also acquired the franchise[42]. The Commonwealth Franchise Act 1902 provided for universal adult franchise but excluded "aboriginal native[s] of Australia Asia Africa or the Islands of the Pacific except New Zealand", save for those entitled to vote by virtue of s 41 of the Constitution[43]. It also excluded persons of unsound mind, persons attainted of treason and persons under sentence or subject to be sentenced for any offence punishable by imprisonment for one year or more.
[36]McMinn, A Constitutional History of Australia, (1979) at 62, cited in Roach v Electoral Commissioner (2007) 233 CLR 162 at 194-195 [69] per Gummow, Kirby and Crennan JJ.
[37]Constitution Act 1856 (SA), s 16.
[38]Abolition of Property Qualification Act 1857 (Vic); Electoral Act 1858 (NSW), s 9.
[39]Elections Act 1885 (Q), s 6; Constitution Act Amendment Act 1893 (WA), s 21.
[40]Constitution Amendment Act 1900 (Tas), s 5.
[41]Constitution Amendment Act 1894 (SA); Constitution Acts Amendment Act 1899 (WA), ss 15-17 and 26.
[42]Women's Franchise Act 1902 (NSW); Constitution Amendment Act 1903 (Tas); Elections Acts Amendment Act 1905 (Q), s 9; Adult Suffrage Act 1908 (Vic).
[43]Commonwealth Franchise Act 1902, s 4. Section 127 of the Constitution, providing that Aborigines were not to be counted in reckoning the numbers of the people of the Commonwealth, was repealed by the Constitution Alteration (Aboriginals) 1967 (Cth).
The electoral laws of the Australian colonies in the 19th century replicated important elements of the British system. A distinction between the qualification of electors and the requirements of listing, enrolment or registration was a common feature of such laws. The qualifications of electors were, for the most part, to be found in early colonial Constitutions, although sometimes they were repeated in electoral statutes[44]. Registration or enrolment requirements were found in statutes made under the Constitutions.
[44]Australian Constitutions Act 1842 (Imp) (5 & 6 Vict c 76), ss 5-7; Constitutional Act 1854 (Tas), ss 6 and 17-19; New South Wales Constitution Act 1855 (Imp) (18 & 19 Vict c 54), Sched 1, s 11; Constitution Act 1855 (Vic), ss 5 and 12; Constitution Act 1856 (SA), ss 6 and 16; Constitution Act 1889 (WA), ss 39 and 53. The Constitution Act 1867 (Q) provided that members of the Legislative Assembly would be elected by inhabitants of the colony having qualifications mentioned in the Electoral Act for the time being: s 28.
The position at Federation was that the electoral laws of each of the Australian colonies conditioned the right to vote in an election upon enrolment on the relevant Electoral Roll[45]. Those electoral laws also provided for closure of the Electoral Rolls to new enrolments or transfers prior to polling day, although with variations in their cut-off dates[46].
[45]Parliamentary Electorates and Elections Act 1893 (NSW), s 80; Constitution Act Amendment Act 1890 (Vic), s 241; Elections Act 1885 (Q), s 40; Electoral Code 1896 (SA), ss 36, 116 and 126; Electoral Act 1899 (WA), ss 21, 87 and 104; Electoral Act 1896 (Tas), s 57.
[46]Parliamentary Electorates and Elections Act 1893 (NSW), ss 47-51; Constitution Act Amendment Act 1890 (Vic), ss 97 and 186; Elections Act 1885 (Q), s 40; Electoral Code 1896 (SA), ss 51, 52 and 57; Electoral Act 1899 (WA), ss 37 and 44; Electoral Act 1896 (Tas), s 57.
Having regard to the historical origins and purpose of voter registration and the mixed usage of the term "qualification" evidenced in Quick and Garran, it might be thought that if enrolment is a qualification in the constitutional sense, it is at best ancillary to those qualifications which otherwise define the franchise. The history of registration laws in the United Kingdom and in Australia provide support for that characterisation. In any event, all laws of the Commonwealth Parliament providing for enrolment and for the conduct of elections must operate within the constitutional framework defined by the words "directly chosen by the people".
Chosen by the people
The content of the constitutional concept of "chosen by the people" has evolved since 1901 and is now informed by the universal adult-citizen franchise which is prescribed by Commonwealth law.The development of the franchise was authorised by ss 8 and 30 of the Constitution, read with s 51(xxxvi). Implicit in that authority was the possibility that the constitutional concept would acquire, as it did, a more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished. In Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[47] its evolution was linked in the judgment of McTiernan and Jacobs JJ to "the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth"[48]. Their Honours said[49]:
"For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s 30, anything less than this could now be described as a choice by the people."
[47](1975) 135 CLR 1; [1975] HCA 53.
[48]Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 36.
[49]Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 36.
The term "common understanding", as an indication of constitutional meaning in this context, is not to be equated to judicial understanding. Durable legislative development of the franchise is a more reliable touchstone. It reflects a persistent view by the elected representatives of the people of what the term "chosen by the people" requires.
Gleeson CJ adverted to the irreversible evolution of "chosen by the people" in Roach v Electoral Commissioner[50] when he answered in the negative the question: "Could Parliament now legislate to remove universal adult suffrage?"[51] The reason for that negative answer was to be found in ss 7 and 24 of the Constitution. Although those sections did not require universal adult suffrage in 1901, it had become, as McTiernan and Jacobs JJ had said in McKinlay, a "long established" fact[52]. The Chief Justice concluded that "in this respect, and to this extent, the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote"[53].
[50](2007) 233 CLR 162.
[51]Roach v Electoral Commissioner (2007) 233 CLR 162 at 173 [6].
[52](1975) 135 CLR 1 at 36.
[53]Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7]. See also Langer v The Commonwealth (1996) 186 CLR 302 at 342 per McHugh J.
It may be accepted, having regard to the narrower view of the franchise that subsisted in 1901, that the term "the people" in ss 7 and 24 of the Constitution is not limited to those who are qualified to vote. However, the adoption of universal adult-citizen franchise has caused the two concepts to converge. The people who choose are the electors. The non-inclusion of non-citizens, minors and incapable persons and persons convicted of treason or treachery, or serving sentences of imprisonment of three years or more for offences against Commonwealth, State or Territory law leaves little relevant room for distinguishing between "the people" and those entitled to become electors.
While the term "directly chosen by the people" is to be viewed as a whole, the irreversibility of universal adult-citizen franchise directs attention to the concept of "the people". Analogous considerations may apply to the term "chosen" and to the means by which the people choose their members of Parliament. Where a method of choice which is long established by law affords a range of opportunities for qualified persons to enrol and vote, a narrowing of that range of opportunities, purportedly in the interests of better effecting choice by the people, will be tested against that objective. This is not to suggest that particular legislative procedures for the acquisition and exercise of the entitlement to vote can become constitutionally entrenched with the passage of time. Rather, it requires legislators to attend to the mandate of "choice by the people" to which all electoral laws must respond. In particular it requires attention to that mandate where electoral laws effect change adverse to the exercise of the entitlement to vote. In this case it is the alteration of a long-standing mechanism, providing last-minute opportunities for enrolment before an election, that is in issue.
Criteria of validity
The validity of a provision of the CEA disqualifying as voters persons serving any sentence of imprisonment for an offence against a Commonwealth or State law was in issue in Roach[54]. The section, which was held invalid, operated by way of an exception to universal adult-citizen franchise. The decision in Roach is not therefore directly applicable to this case. The general approach of the majority in Roach is, however, instructive. It informs, by close analogy, the approach which should be taken in this case to the challenged law in light of the constitutional mandate. Gleeson CJ observed in his judgment in Roach that[55]:
"Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people."
Exceptions to universal adult-citizen franchise required "a rational connection with the identification of community membership or with the capacity to exercise free choice"[56].
[54](2007) 233 CLR 162.
[55](2007) 233 CLR 162 at 174 [7] (footnote omitted).
[56]Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [8].
Gummow, Kirby and Crennan JJ also spoke of the need for a "substantial reason" to justify an exception to universal adult-citizen franchise. That requirement would be satisfied by an exception "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government"[57]. That formulation, their Honours said, approached the notion of "proportionality", for[58]:
"What upon close scrutiny is disproportionate or arbitrary may not answer to the description reasonably appropriate and adapted for an end consistent or compatible with observance of the relevant constitutional restraint upon legislative power."
The present case concerns an electoral law of a procedural or machinery character. It does not in terms carve out an exception to the franchise. It does, however, have a substantive effect upon entitlements to vote and so affects the exercise of the franchise.
[57]Roach v Electoral Commissioner (2007) 233 CLR 162 at 199 [85], referring also to Gleeson CJ in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199-200 [39]-[40]; [2004] HCA 41.
[58]Roachv Electoral Commissioner (2007) 233 CLR 162 at 199 [85].
While "common understanding" of the constitutional concept of "the people" has changed as the franchise has evolved, "the people" is not a term the content of which is shaped by laws creating procedures for enrolment and for the conduct of elections. If such a law denies the right to vote to any class of person entitled to be an elector, it denies it to that class of "the people". Such a law may be valid. But the logic of the constitutional scheme for a representative democracy requires that the validity of such a law be tested by reference to the constitutional mandate of direct choice by "the people". Where, as in the present case, the law removes a legally sanctioned opportunity for enrolment, it is the change effected by the law that must be considered. It is not necessary first to determine some baseline of validity. Within the normative framework of a representative democracy based on direct choice by the people, a law effecting such a change causes a detriment. Its justification must be that it is nevertheless, on balance, beneficial because it contributes to the fulfilment of the mandate. If the detriment, in legal effect or practical operation, is disproportionate to that benefit, then the law will be invalid as inconsistent with that mandate, for its net effect will be antagonistic to it. Applying the terminology adopted in Roach, such a law would lack a substantial reason for the detriment it inflicts upon the exercise of the franchise. It is therefore not sufficient for the validity of such a law that an election conducted under its provisions nevertheless results in members of Parliament being "directly chosen by the people".
The Solicitor-General of the Commonwealth drew by analogy upon a distinction, made in this Court, between laws intended to impose a direct burden upon the implied freedom of political communication and those which restricted communication as part of a broader scheme of regulation[59]. The plaintiffs, it was submitted, failed at the threshold because the impugned laws were directed to keeping the Electoral Rolls up to date. Save for certain exceptional cases[60], persons who complied with the duties imposed under s 101 of the CEA would not need to enrol or vary their enrolment when an election was called. The submission rested upon the premise that a change in a procedural or machinery law relating to elections which removes a pre-existing opportunity for enrolment by qualified persons does not require substantial justification. The premise, for the reasons already outlined, is not accepted. The submission must be rejected.
[59]Coleman v Power (2004) 220 CLR 1 at 52 [98] per McHugh J; [2004] HCA 39; Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 200 [40] per Gleeson CJ, citing Levy v Victoria (1997) 189 CLR 579 at 618-619 per Gaudron J; [1997] HCA 31.
[60]Persons who turn 18 between the issue of the writs and polling day who could, in any event, have applied under s 100 and have three days after the issue of the writs to enrol pursuant to s 102(4AB); persons granted citizenship between the issue of the writs and polling day who in any event may apply under ss 99B and 102(4AA) up to three days after the issue of the writs; persons who have recently moved and become entitled to transfer enrolment under s 99(2) between the close of Rolls and polling day.
The Commonwealth, nevertheless, sought to support the amendments as procedural laws "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government". The fixing of some cut-off date for enrolment consequent upon the issue of writs for an election was appropriate and adapted to that end. The Commonwealth relied upon the legislative scheme in which the cut-off provisions find their place and which provides for:
. the imposition of the duty of enrolment;
.the precondition to enrolment requiring satisfaction on the part of the Electoral Commissioner that a person claiming to be entitled to be enrolled is so entitled;
.the elaborate procedure for the conduct of an election consequent upon the issue of the writs, which procedure is premised upon the prior closure and substantial correctness of the Rolls; and
.a bar on any challenge to an election based on an allegation of incorrectness of the Rolls.
The Commonwealth submitted that the choice of one date rather than another as the cut-off date for enrolment following the issue of writs for an election was not something which would take the legislative scheme outside the bounds of what is appropriate and adapted to the relevant end.
For the reasons already given, the characterisation of an electoral law as procedural, or in the nature of electoral machinery, does not of itself justify collateral damage to the extent of participation by qualified persons in the choice of their parliamentary representatives. The detriment, even if contributed to by the failure of those persons to fulfil their duties under the CEA, is still a detriment "of concern to the whole Commonwealth".
It must be accepted, in considering the validity of the impugned laws, that Parliament has a considerable discretion as to the means which it chooses to regulate elections and to ensure that persons claiming an entitlement to be enrolled are so entitled. It is not for this Court to hold such a law invalid on the basis of some finely calibrated weighing of detriment and benefit. Nor is it the function of the Court to hold such a law beyond the power of the Parliament simply because the Court thinks there might be a better way of achieving the same beneficial purpose. What Latham CJ said in the First Uniform Tax Case is of general application and applies to this case[61]:
"It is not for this or any court to prescribe policy or to seek to give effect to any views or opinions upon policy. We have nothing to do with the wisdom or expediency of legislation. Such questions are for Parliaments and the people."
If a law subject to constitutional challenge is a law within the legislative competency of the Parliament that enacts it, the question whether it is a good law or a bad law is a matter for the Parliament and, ultimately, the people to whom the members of the Parliament are accountable. But where the Constitution limits the legislative power of a Parliament in any respect and where a question of the validity of a law is raised and has to be answered in order to determine a matter before the Court, then the Court must decide whether constitutional limits have been exceeded.
[61]South Australia v The Commonwealth (1942) 65 CLR 373 at 409; [1942] HCA 14.
It is necessary at this point to refer to the events which have led to these proceedings.
Factual and procedural history
On Saturday, 17 July 2010, the Prime Minister announced her intention to call a general election for the Senate and the House of Representatives. On the same day, her Excellency, the Governor-General, acting upon the advice of the Prime Minister, prorogued the Parliament from 4.59 pm on Monday, 19 July until Saturday, 21 August 2010[62]. Writs were issued on 19 July for the election of members of the House of Representatives for the States and Territories and for the election of senators for the Territories by the Administrator in Council and for the election of senators for the States by their respective vice-regal representatives.
[62]Commonwealth of Australia Gazette, S136, 19 July 2010.
The writs fixed 22 July 2010 for the closing of the Rolls, 29 July 2010 for the closing of nominations, 21 August 2010 for polling and on or before 27 October 2010 for the return of the writs.
The plaintiffs are both students. Both are Australian citizens. The first plaintiff, Shannen Rowe, turned 18 on 16 June 2010. At the time the election was announced she was not enrolled to vote. A completed form was not lodged on her behalf until Friday, 23 July 2010. By operation of s 102(4) of the CEA, her claim for enrolment, having been lodged after 8 pm on the day of the issue of the writs, could not be considered until after the close of polling at the election. The second plaintiff, Douglas Thompson, was 23 years of age and was enrolled to vote for the Division of Wentworth at an address in that Division. However, in March 2010 he had moved to a new address in the Division of Sydney. Following an abortive attempt to lodge electronically a claim for transfer of his enrolment pursuant to s 101 of the CEA, he completed a form which he signed on 22 July and which was lodged by facsimile transmission with the AEC by his solicitor. By virtue of s 102(4AA) of the CEA, however, his claim for transfer, having been lodged after 8 pm on the date of the close of the Rolls, could not be considered until after the close of polling at the election.
Ms Rowe and Mr Thompson commenced proceedings in this Court on 26 July 2010 on their own behalf and as representative parties claiming a declaration that ss 102(4), 102(4AA) and 155 of the CEA are invalid. They also sought an order to show cause why writs of mandamus should not issue directed to the Electoral Commissioner in effect requiring that they be included on the Electoral Rolls for their respective Divisions.
On 29 July 2010, Hayne J made an order pursuant to r 25.03.3(b) of the High Court Rules 2004 referring the proceedings for further hearing by a Full Court on Wednesday, 4 August 2010. The plaintiffs continued the proceedings on their own behalf and not in a representative capacity. They filed an amended application by leave. The parties also filed a statement of agreed facts.
The Commonwealth Electoral Act 1918
The long title of the CEA is "An Act to Consolidate and Amend the Law relating to Parliamentary Elections and for other purposes". The provisions under challenge must be considered in the context of the legislative scheme of which they form part.
The Act establishes the Australian Electoral Commission ("the AEC"), comprising a Chairperson, the Electoral Commissioner and one other member[63]. Among the functions of the AEC are[64]:
"to provide information and advice on electoral matters to the Parliament, the Government, Departments and authorities of the Commonwealth".
The AEC is required to prepare and forward to the Minister each year a report of its operations for the year ended 30 June[65]. Annual Reports of the AEC for the years 1998-1999 to 2008-2009 inclusive were referred to in the statement of agreed facts, which forms part of the Application Book. The AEC has also, from time to time, made submissions to the Joint Standing Committee on Electoral Matters ("the JSCEM"). A number of those submissions were also included in the Application Book in relation to inquiries conducted by the JSCEM into federal elections in 1998, 2004 and 2007. By the agreed facts, the authenticity of the reports and the submissions were accepted, as was, by specific agreement, the correctness of certain factual statements and tables contained in them. Reference to these reports and submissions in these reasons is made within the framework of the agreements about their use between the parties[66].
[63]CEA, s 6(1) and (2).
[64]CEA, s 7(1)(d).
[65]CEA, s 17(1).
[66]Set out in the statement of agreed facts in the Application Book and a supplementary statement of agreed facts filed on 5 August 2010.
The Electoral Commissioner is the chief executive officer of the AEC[67]. There is an Australian Electoral Officer for each State[68]. There is a Divisional Returning Officer for each Electoral Division, whose duty it is to give effect to the Act "within or for the Division subject to the directions of the Electoral Commissioner and the Australian Electoral Officer for the State"[69].
[67]CEA, s 18.
[68]CEA, s 20(1).
[69]CEA, s 32(1); see also ss 18(3) and 20(3).
Under Pt IV of the Act each State and the Australian Capital Territory are "distributed into Electoral Divisions" with one member of the House of Representatives to be chosen for each Division[70]. There is a provision for the redistribution of the Divisions in a State or the Territory[71] and a requirement for monthly assessments of the number of persons enrolled in each Division, the average divisional enrolment and the extent to which the number of electors enrolled in each Division differs from that average[72]. A mini-redistribution can be undertaken after the issue of the writs for an election where the number of Divisions in a State differs from the number of members to which the State is entitled[73]. That process involves a consideration of the number of electors enrolled in the various Divisions within the State. The Rolls therefore have an important part to play in the redistribution process.
[70]CEA, ss 56 and 57.
[71]CEA, s 73.
[72]CEA, s 58(1).
[73]CEA, s 76.
Part VI of the CEA provides for a Roll of electors for each State and for each Territory[74]. Each of those Rolls is made up of the Rolls for the Divisions within the State or Territory[75]. The Rolls are to contain the name and address of each elector and such further particulars as are prescribed[76]. Rolls can be inspected[77] and information contained in them must be made available to specified classes of persons and organisations[78]. The AEC must conduct reviews of the Rolls with a view to ascertaining such information as is required for their preparation, maintenance and revision[79].
[74]CEA, s 81(1).
[75]CEA, s 82(4).
[76]CEA, s 83(1). Save for eligible overseas electors and itinerant electors, whose addresses are not required: s 83(2).
[77]CEA, s 90A.
[78]CEA, ss 90B-91B.
[79]CEA, s 92(2).
The AEC has, since 1999, used a process of data-matching, designated "Continuous Roll Update" ("CRU"), to maintain the Electoral Roll. By this process personal information on electors held by the AEC is matched with external data from other agencies and from some utility companies. Where data-matching indicates that an elector has become eligible or has changed his or her address, the AEC sends a letter to or visits the elector. This process can result in an enrolment or a transfer of enrolment occurring. Non-response to attempted communication can lead to the removal of the elector from the Roll under the objection process for which Pt IX provides[80].
[80]The CRU process was described in a report dated 21 April 2010 prepared by the Australian National Audit Office on the AEC's preparation for, and conduct of, the 2007 federal general election. The contents of the report were agreed by the parties as an accurate statement of the AEC's CRU activities during the period described.
The scale of the CRU undertaking is indicated by the fact that between 2000-2001 and 2004-2005 the AEC each year processed about four million records showing a change of address or likely eligibility to enrol. Targeted mail was sent to 2.8 million addresses each year. Field visits were made to 330,000 habitations annually. This activity generated about 850,000 enrolments annually. The result of the activity was more complete Electoral Rolls. There was, however, a much lower rate of return, in terms of enrolments, having regard to extra expenditure in 2007, compared with the return in 2004.
During 1997, the AEC introduced enhancements to its computerised Roll Management System ("RMANS") in order to detect and deter fraudulent enrolment. The RMANS Address Register separately identifies each known address, based on known streets and localities, and lists a range of attributes for the address, including whether the address is habitable and valid for enrolment. The Register is then used to assess the validity of addresses listed on enrolment claims.
Qualifications and disqualifications for enrolment and for voting are dealt with in Pt VII of the CEA. A key provision of Pt VII is s 93. It sets out conditions upon which persons "shall be entitled to enrolment"[81]. They are persons who have attained 18 years of age and who are Australian citizens[82]. Also entitled are non-citizens who would have been British subjects within the meaning of the relevant citizenship law had it continued in force and whose names were, before 26 January 1984, on a Roll[83]. An "Elector" is defined in s 4(1) as "any person whose name appears on a Roll as an elector" and whose name is on the Roll for a Division. An elector is "entitled to vote at elections of Members of the Senate for the State that includes that Division and at elections of Members of House of Representatives for that Division"[84].
[81]CEA, s 93(1).
[82]CEA, s 93(1)(a) and (b)(i).
[83]CEA, s 93(1)(b)(ii).
[84]CEA, s 93(2).
Some classes of persons are not entitled to enrolment or to vote. The holders of temporary visas under the Migration Act 1958 (Cth) and unlawful non-citizens under that Act are not entitled to enrolment[85]. Persons who, by reason of being of unsound mind, are incapable of understanding the nature and significance of enrolment and voting and persons convicted of treason or treachery and not pardoned are not entitled to enrolment or to vote at any Senate election or election for the House of Representatives[86]. Also disqualified are persons serving a sentence of imprisonment of three years or longer[87].
[85]CEA, s 93(7).
[86]CEA, s 93(8).
[87]CEA, s 93(8)(b) as it stood before its repeal in 2006 by amendments held invalid in Roach v Electoral Commissioner (2007) 233 CLR 162.
Persons resident in Australia who are leaving Australia may be included on the Roll as eligible overseas electors[88]. Persons who have ceased to reside in Australia and intend to resume residence within six years of ceasing may apply for enrolment and be enrolled[89]. Spouses, de facto partners and children of eligible overseas electors may apply for enrolment[90]. There is also provision for the enrolment of itinerant electors, a class which includes homeless persons[91]. There are cut-off provisions, preventing consideration of the enrolment of persons in some of these categories, which operate from 8 pm on the day that the writs have issued for an election[92]. The validity of the amendments which introduced these provisions was challenged by the plaintiffs in their further amended application. That was a necessary consequence of their challenge to the cut-off provisions affecting them, which are to be found in Pt VIII of the CEA. No objection was taken to their standing to do so. It was accepted that the cut-off provisions introduced by the Amendment Act would stand or fall together.
[88]CEA, s 94.
[89]CEA, s 94A.
[90]CEA, s 95.
[91]CEA, s 96.
[92]CEA, ss 94A(4), 95(4) and 96(4). These cut-offs were introduced by Items 20, 24 and 28 in Sched 1 to the Amendment Act.
Section 93 is made under two heads of constitutional power. The first is the power to make laws to prescribe the qualifications of electors[93]. The second is the power to make laws relating to the election of senators and members of the House of Representatives[94]. The two heads of legislative power are logically distinct. Nevertheless, laws prescribing electoral processes may validly impinge upon the entitlement to vote at an election. As already explained, the only proper purpose of such processes is to provide the means by which "the people" may choose the members of their Parliament. That statement of purpose is a generalisation of the rationale offered by Griffith CJ in Smith v Oldham for laws regulating the conduct of persons with regard to elections[95]:
"The main object of laws for that purpose is, I suppose, to secure freedom of choice to the electors."
[93]Constitution, s 51(xxxvi) read with ss 8 and 30.
[94]Constitution, s 51(xxxvi) read with ss 10 and 31.
[95](1912) 15 CLR 355 at 358.
The logical distinction between the two heads of power was acknowledged by Gibbs CJ, Mason and Wilson JJ in R v Pearson; Ex parte Sipka[96]. The provision of the CEA there under consideration, to the extent that it impinged upon voting rights said to be protected by s 41 of the Constitution, was s 45(a). The latter section provided a cut-off for claims for enrolment and transfers of enrolment upon issue of the writs for an election. It was characterised by their Honours as a law relating to elections for members of the House of Representatives and senators[97]. It does not appear from the joint judgment of Brennan, Deane and Dawson JJ that their Honours, as the Commonwealth submitted in this case, treated s 45(a) as an aspect of the definition of the Commonwealth franchise under ss 8 and 30. The Commonwealth submitted that in any event the subject matters of qualification of electors and elections are not mutually exclusive. That may be accepted. A law may be a law with respect to both subject matters. But the class of law which defines the qualifications of electors, even if it extends to laws making enrolment a condition of entitlement to vote, does not extend to procedural laws prescribing cut-off dates for the lodgement of claims for enrolment or transfer of enrolment.
[96](1983) 152 CLR 254.
[97](1983) 152 CLR 254 at 265.
Part VIII of the CEA sets up a system of compulsory enrolment. Every person who is entitled to be enrolled for any Subdivision, whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll, is required to "forthwith fill in and sign a claim and send or deliver the claim to the Electoral Commissioner"[98]. The requirement does not apply to persons applying to be treated as eligible overseas electors under s 94 or their spouses, de facto partners or children. It does not apply to itinerant electors, nor to persons who have turned 16 and who are thereby eligible under s 100 of the CEA to lodge a claim in advance of turning 18.
[98]CEA, s 101(1).
By operation of s 98AA[99], certain classes of prospective electors, including those making claims as itinerant or overseas electors, are required to supply evidence of their identity. The methods of proof available are specified in sub-s (2) and in regs 11A and 12 of the Electoral and Referendum Regulations 1940 (Cth).
[99]Section 98AA was inserted into the CEA by the Amendment Act (Item 29 in Sched 1) but was repealed and its present form substituted by the Electoral and Referendum Amendment (Modernisation and Other Measures) Act 2010 (Cth) (Item 6 in Sched 2).
Subject to an immaterial exception, a person whose name is not on the Roll on the expiration of 21 days from the date upon which the person became so entitled is guilty of an offence unless he or she proves that the non-enrolment was not the result of a failure to send a completed claim to the Electoral Commissioner[100]. There is also an offence committed when a person changes his or her address within a particular Subdivision and does not give notice of the new address within 21 days to the Electoral Commissioner[101]. Failure to comply with the obligations under s 101 constitutes an offence punishable on conviction by a fine not exceeding one penalty unit. There is, however, a saving provision in s 101(7), which provides:
"Where a person sends or delivers a claim for enrolment, or for transfer of enrolment, to the Electoral Commissioner, proceedings shall not be instituted against that person for any offence against subsection (1) or (4) committed before the claim was so sent or delivered."
The obligations imposed by s 101 apply to first-time claimants for enrolment on any Roll, persons effecting transfer of enrolment from one Subdivision to another and persons changing their address within one Subdivision. The offence provisions are an incentive to enrolment and to discharge of the statutory duty to enrol and ultimately to vote. Their primary character as an incentive is apparent from the immunity from prosecution conferred by s 101(7) when a person has sent or delivered a claim for enrolment or transfer of enrolment to the Electoral Commissioner. They are designed not to punish, but to encourage maximum participation by persons qualified to vote.
[100]CEA, s 101(4).
[101]CEA, s 101(5) and (6).
Where the Electoral Commissioner receives a claim for enrolment or transfer of enrolment and the claim is in order, the Commissioner is required by s 102(1)(b) to enter the name of the claimant on the Roll together with other necessary particulars. The claimant is also to be notified in writing of the enrolment. Sub-sections (4) and (4AA) of s 102 apply in the present case to the first and second plaintiffs respectively. The validity of the amendments to the CEA which introduced those sub-sections is under challenge. The sub-sections are in the following terms:
"(4)If a claim by a person for enrolment under section 101 … is received during the period:
(a)beginning at 8 pm on the date of the writ or writs for an election for the Division to which the claim relates; and
(b)ending at the close of the polling at the election;
then the claim must not be considered until after the end of the period.
(4AA)If a claim by a person for transfer of enrolment under section 101 … is received during the period:
(a)beginning at 8 pm on the date of the close of the Rolls for an election for the Division to which the claim relates; and
(b)ending at the close of the polling at the election;
then the claim must not be considered until after the end of the period."
Where a claim is delayed by reason of delay in the delivery of mail caused by an industrial dispute, then the claim shall be regarded as having been received before the commencement of the cut-off periods referred to in sub-s (4) or sub‑s (4AA) as the case requires[102].
[102]CEA, s 102(4A) and (4B).
Sub-sections (4) and (4AA) of s 102 are to be read in the light of Pt XIII of the CEA, which is concerned, inter alia, with the issue of writs for elections, the dates for the close of the Rolls, nomination, polling and the return of the writs. The close of the Rolls is dealt with by s 155:
"155 Date for close of Rolls
(1)The date fixed for the close of the Rolls is the third working day after the date of the writ.
(2)In this section:
working day means any day except:
(a)a Saturday or a Sunday; or
(b)a day that is a public holiday in any State or Territory."
The validity of the 2006 amendment to s 155 is challenged in these proceedings.
The date fixed for nomination of the candidates is required to be not less than 10 days nor more than 27 days after the date of the writ[103]. The date fixed for polling is to be not less than 23 days nor more than 31 days after the date of nomination[104]. The date fixed for the return of the writ is to be not more than 100 days after the issue of the writ[105]. The effect of s 102(4) is that a person lodging a claim for enrolment cannot have the claim considered until after the election if it was lodged after 8 pm on the day that the writs issued. The effect of s 102(4AA), read with s 155, is that a person seeking transfer of enrolment because of a change of address has three days only from the date of the issue of the writs to lodge his or her claim.
[103]CEA, s 156(1).
[104]CEA, s 157.
[105]CEA, s 159.
Part IX of the Act provides for objections to be made to the enrolment of a person on the Electoral Roll[106]. The Electoral Commissioner, however, cannot remove an elector's name from the Roll during the period between 8 pm on the date of issue of the writs for an election and the close of polling for that election[107]. The Commonwealth in its submissions pointed to the effects of the pre-amendment law on the Electoral Commissioner's ability to process objections. In this connection it should be noted that s 106 empowers the Electoral Commissioner, at any time between the date of issue of the writ for an election for a Division and before the close of polling at that election, to remove from the Roll the name of a person who secured enrolment pursuant to a claim in which the person made a false statement. That power does not depend upon the application of the objection process.
[106]CEA, s 114.
[107]CEA, s 118(5). This provision was altered by the Amendment Act. Prior to amendment, the period during which the removal of names from the Rolls was precluded ran from seven days after the date of the writs.
It is now necessary to review briefly the history of cut-off provisions prior to the Amendment Act.
Enrolment cut-offs: 1902-2006
The Commonwealth Electoral Act 1902 was described in its long title as "An Act to regulate Parliamentary Elections". It conferred the entitlement to enrolment on "[a]ll persons qualified to vote at any Election for the Senate or House of Representatives, or who would be qualified so to vote if their names were upon a Roll"[108]. There was a cut-off provision in s 64. Claims for enrolment and transfer of enrolment lodged before the issue of the writs for an election could be processed after the issue of the writs but otherwise no addition or alteration was to be made to the Rolls between the issue of the writs and the close of polling.
[108]Commonwealth Electoral Act 1902, s 31.
As enacted the CEA, which consolidated and amended the law relating to parliamentary elections, contained a similar although not identical cut-off provision. Claims for enrolment or transfer which were received after 6 pm on the day of the issue of the writs for an election would not be registered until after close of polling[109].
[109]CEA, s 45(a) (as enacted in 1918).
Until 1983 the CEA continued to provide that the Electoral Rolls closed on the date of issue of the writs. There was, however, an executive practice, which developed at least from the 1930s, of announcing the election some days before the Governor-General was asked to dissolve Parliament and issue writs for the election of the members of the House of Representatives[110]. The time between the announcement and the issue of the writs varied, after 1934, from a minimum of five days in 1949 to a maximum of 63 days in 1958. In 1983 there was a departure from that practice. The election was announced on the afternoon of the day before the issue of the writs. It was that late announcement, coupled with the operation of s 45(a) (the cut-off provision of the CEA then in force), that led to the litigation in this Court in R v Pearson; Ex parte Sipka[111]. Murphy J referred to the background in his dissenting judgment[112]:
"The effect of the circumstances in which this election was called is that many persons who were entitled to be but were not enrolled on the Commonwealth roll by 6 pm on 4 February 1983 are, apart from s 41 of the Constitution, prevented from enrolling and voting in this election because of s 45(a) of the Commonwealth Electoral Act."
[110]Constitution, s 32.
[111](1983) 152 CLR 254.
[112](1983) 152 CLR 254 at 266-267.
The CEA was amended by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth). The cut-off point for consideration of claims for enrolment or transfer of enrolment was extended beyond the date of issue of the writs to the date of close of the Rolls[113]. The date fixed for close of the Rolls was to be seven days after the date of issue of the writs[114]. The Second Reading Speech for the amending legislation described one of its objectives as "to make it easier for electors to get on the rolls and stay on the rolls … For example, the Bill provides that there must be a sufficient time between the announcement of an election and the close of rolls for that election."[115] The seven-day period of grace then introduced operated for eight subsequent federal elections until the amendments under challenge in these proceedings.
[113]Commonwealth Electoral Legislation Amendment Act 1983, s 29.
[114]Commonwealth Electoral Legislation Amendment Act 1983, s 45.
[115]Australia, House of Representatives, Parliamentary Debates (Hansard), 2 November 1983 at 2216.
Before it was amended in 2006, s 102 of the CEA precluded consideration, until after the close of polling, of a claim for new enrolment received after 8 pm on the day on which the Rolls for the election were to close. Section 155, as it then stood, provided that the date fixed for the close of the Rolls was seven days after the date of the writs. The effect of s 102, read with s 155, was that a person, qualified as an elector, had seven days after the issue of the writs to lodge a claim for enrolment and thus be placed on the Roll. The position of a person seeking a transfer of enrolment was the same.
The challenged amendments were effected by s 3 of the Amendment Act, read with various items specified in Sched 1 to that Act. The amendment, by repeal and substitution, of s 102(4) and the insertion of s 102(4AA) were effected by Item 41 in Sched 1. The amendment of s 155 was effected by repeal and substitution under Item 52 in Sched 1.
Operation of the cut-off: 1983-2006
AEC records for the period 1993-2006 show the number of new enrolments, re-enrolments and transfers of enrolment undertaken during the grace period after the issue of the writs. The number of such transactions represented well in excess of 350,000 electors in each of the 1993, 1996, 1998 and 2001 elections. For each of the 1998 and 2001 elections the number of new enrolments and re-enrolments increased daily during the seven-day period (save for Saturdays and Sundays). In 2004, the close-of-Rolls transactions represented 17.5 per cent of total enrolment activity for the 2004-2005 financial year. Of 520,086 close-of-Rolls transactions, 265,513 enrolment cards were received from voters whom the AEC had contacted in the 12 months prior to the election.
Following the Amendment Act the post-announcement grace period for the 2007 election was three days for new enrolments and nine days for updating existing enrolments. There were in those periods 279,469 enrolment transactions. Some 100,370 people lodged their claims for enrolment or transfer of enrolment after the close of the Rolls.
The AEC reported to the Australian National Audit Office ("the ANAO"), following the 2007 election, that it had faced a far greater challenge in 2007 due to the shortened close of the Rolls. It was not able to rely upon its previous strategy, used in 2004, which involved advertising when the election was called and drawing attention to the seven-day close-of-Rolls period. The AEC also reported that in 2007 it had achieved "a small gain in enrolment efficiency measured by transaction". The gain was expensive. About $36 million was spent on enrolment activity, including advertising, before the 2007 election. The marginal cost of each of the net additional 118,885 enrolments in 2007 was over $216, nearly seven times the unit cost per additional enrolment in 2004.
As to the problem of electoral fraud, the AEC stated, in a submission to the JSCEM in October 2000, that "identity fraud is not a significant problem in the federal electoral system". The AEC observed:
"Apart from the lack of evidence available to the AEC of any widespread and organised conspiracy involving identity fraud … it must be acknowledged that there are very significant difficulties in organising an identity fraud conspiracy of sufficient magnitude to affect the result in a federal Division".
In the event, it was not submitted for the Commonwealth that the justification for the amendments, so far as it was based upon the prevention of fraud, was other than prophylactic. That is to say, the amendments were not introduced as a reaction to an existing problem of identity fraud in connection with enrolments.
It is apparent from the agreed facts that, as would be expected, the effect of the cut-off provisions enacted in 2006 was greater with respect to newly qualified electors than electors in older age groups. The percentage of eligible persons in the age range 18-25 who were not enrolled as at 30 June 2006 and 30 June 2007 was significantly greater than the percentage of the total number of eligible voters who were not enrolled at those dates. As at 15 April 2010, there were approximately 430,000 eligible young people who were not enrolled to vote.
It was also an agreed fact that people living in remote and rural areas of Australia may have difficulty enrolling because of limited access to the facilities and services necessary for enrolment.
Other agreed facts were before the Court in relation to claims for enrolment in connection with the 2010 election. They were set out in an affidavit sworn by Paul Dacey, Deputy Electoral Commissioner in the AEC:
1.508,000 claims for enrolment and transfer of enrolment were received after the announcement of the election and before the deadlines for enrolment claims. Those claims were processed onto the Rolls by 27 July 2010.
2.There were estimated to be 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 Amendment Act. That estimate was based on preliminary advice from State Managers at close of business on 27 July 2010, albeit it was subject to a considerable margin of uncertainty.
Mr Dacey indicated that if a requirement to process late claims for enrolment and transfer of enrolment were made known to the AEC by 6 August 2010, it would be able to process them. It would have to deploy additional staff and the deployment would cause some level of disruption. An electronic version of the Roll would be able to be completed by 18 August 2010. The AEC would write to electors who had made late claims once their applications had been processed onto the Roll and advise that they would be able to cast a provisional vote at a polling place on polling day. Their names would not appear on the certified lists, which are the printed lists of voters for each Division required by s 208 of the CEA. Those lists would have been finalised and sent for printing. This would not prevent electors who enrolled late from exercising their vote, nor would it interfere with processes of preliminary scrutiny of declaration votes[116] as those requirements could be met by utilising the electronic Roll.
[116]Declaration votes comprise postal votes, pre-poll declaration votes, absent votes and provisional votes: CEA, s 4(1).
The justification for the Amendment Act
The Bill which became the Amendment Act was said, in the Second Reading Speech, to contain "reform measures arising from some of the government supported recommendations of the Joint Standing Committee on Electoral Matters' report on the 2004 federal election, which was tabled in the parliament in October 2005, and additional reform measures considered a priority by the government"[117]. The Speech did not otherwise set out the objectives or rationale of the amendment. The Explanatory Memorandum did not add anything relevant for present purposes.
[117]Australia, House of Representatives, Parliamentary Debates (Hansard), 8 December 2005 at 19.
The report of the Joint Standing Committee on Electoral Matters on the 2004 federal election[118] ("the JSCEM Report"), referred to in the Second Reading Speech and the Explanatory Memorandum, contained a number of recommendations. One was that s 155 be amended to provide that the date and time fixed for the close of the Rolls be 8 pm on the day of the writs[119]. The objective of and rationale for the amendment was set out at pars 2.112 to 2.126 of the Committee's report. In those paragraphs, the Committee made the following points:
[118]Australia, The Parliament, Joint Standing Committee on Electoral Matters, The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto, (2005).
[119]JSCEM Report at 36 [2.127].
(i)The AEC had processed approximately 17.5 per cent of enrolment transactions in 2004-2005 during the close of Rolls for the 2004 federal election, a period representing only three per cent of the available working time for the year[120].
[120]JSCEM Report at 34 [2.112].
(ii)The volume of transactions during the close-of-Rolls period limited the AEC's ability to conduct the thorough and appropriate checks required to ensure that the Rolls were updated with integrity[121].
[121]JSCEM Report at 34 [2.113].
(iii)If electors had enrolled or changed their enrolment details at the time that their entitlement changed, 60.5 per cent of enrolment transactions during the close-of-Rolls period would not have been required[122].
[122]JSCEM Report at 34 [2.114].
(iv)The seven-day close-of-Rolls period for federal elections actually encouraged electors and potential electors to neglect their obligations in respect of enrolment, believing they could play "catch up" during the close-of-Rolls period. It thereby decreased the accuracy of the Rolls[123].
[123]JSCEM Report at 35 [2.116]-[2.117].
(v)A significant number of electors failed to update enrolment details in the 12 months before the 2004 election writs were issued despite contact and prompting from the AEC up to 12 months before the election was announced. These electors were later responsible for a large proportion of the enrolment transactions that the AEC was required to process during close of Rolls[124].
[124]JSCEM Report at 35 [2.118].
(vi)AEC statistics indicated that, despite AEC efforts and significant taxpayer funds expended in contacting electors prior to elections being announced, that pattern was repeated election after election[125].
(vii)Electors act unlawfully in not enrolling when entitled and also cause wastage of a significant amount of taxpayer funds expended on postage and other measures in repeated attempts to persuade them to update their details on the Electoral Roll[126].
(viii)Current close-of-Rolls arrangements present an opportunity for those who seek to manipulate the Rolls to do so at a time where little opportunity exists for the AEC to undertake the thorough checking required to ensure Roll integrity[127].
(ix)The fundamental issue was to prevent such fraud before it was able to occur. Failure to do so would amount to neglect[128].
(x)The change, along with the introduction of proof of identity and address measures for enrolment and provisional voting would ensure the Electoral Roll retained a high degree of accuracy and integrity, while reminding electors that the responsibility for ensuring that the Electoral Roll is updated in a timely manner rests with them[129].
[125]JSCEM Report at 35 [2.119].
[126]JSCEM Report at 35 [2.120].
[127]JSCEM Report at 35 [2.121].
[128]JSCEM Report at 35 [2.123].
[129]JSCEM Report at 36 [2.126].
Contentions and conclusions
The principal Commonwealth submissions in respect of validity, which assumed no relevant distinction between a disqualifying electoral law and a "procedural" electoral law, may be summarised as follows:
1.The issue in relation to the validity of the impugned provisions was in substance, according to the Commonwealth, whether their effect on the ability of some persons to cast a vote in an impending election was disproportionate to the end that they served. In light of the preceding discussion that submission is not controversial.
2.It was not a necessary condition of the validity of the impugned provisions, so the submission went, that there be evidence of a pre-existing mischief, such as electoral fraud, to which they were directed. That submission can be accepted. However the presence or absence of evidence of an existing mischief may be relevant in ascertaining whether the detriment imposed by a law which disentitles qualified persons from enrolment is disproportionate to the benefit to be derived in terms of the constitutional mandate.
3.The benefits derived from the earlier cut-off dates were said to include the smooth and efficient conduct of elections effected by:
(i) enhancement of the accuracy of the Roll between elections by encouraging timely enrolment and updating;
(ii) consequential saving of AEC resources otherwise spent on attempts to persuade people to enrol; and
(iii) consequential reduction of the diversion of AEC resources into processing of late claims for enrolment and transfer.
The possibility that the amendments could yield such benefits can be accepted.
4.The Constitution, it was submitted, has always allowed the executive a degree of control over the time that elapses between the announcement of an election and the issue of the writs. The impugned provisions, it was said, do not affect that power. That submission can also be accepted. However, a key difficulty in this case is that the impugned provisions remove a statutory grace period incapable of being affected by the executive discretion as to the timing of the announcement of the election.
5.The Commonwealth also submitted that, on the plaintiffs' argument, either the pre-1983 provisions were invalid or their validity was somehow conditioned upon executive practice. It is not clear that the plaintiffs' argument has that consequence. In any event, when attention is focussed, as it ought to be, upon the alterations effected by the law to existing opportunities to enrol and to update enrolment rather than the search for a baseline of validity, the Commonwealth's submission is beside the point.
6.The integrity of the Rolls was said to be enhanced by the impugned provisions in two ways:
(i)ensuring that people who should be on the Roll are on it; and
(ii)ensuring that people who should not be on the Roll are not included.
The Commonwealth submitted that the latter aspect of the integrity of the Rolls is enhanced because the AEC would have more time to process enrolment applications before polling day. Again, these benefits may be accepted as outcomes to which the amendments are directed.
7.The Commonwealth submitted that differential effects of the impugned provisions on different sections of the community neither affect characterisation of the impugned provisions nor indicate a purpose of disenfranchising those sections. The defining characteristic of those excluded was said to be that they failed to comply with their obligations to enrol and effect transfer of their enrolments. In my opinion there is no basis for inferring any discriminatory purpose underlying the Amendment Act. Moreover, it is not necessary to the disposition of this case to consider the significance of the differential operation of the impugned provisions upon particular groups. This does not exclude the possibility that operational discrimination, effected by an electoral law, in relation to the acquisition and exercise of voting entitlements could be relevant to the validity of such a law.
8.The Commonwealth also contended that differential effects of the impugned provisions on people living in remote areas were simply one aspect of the difficulties that face people living in such areas and would not affect characterisation of the impugned provisions. The cut-off for itinerant and homeless people, it was said, had not been shown to impose a "significantly different burden" on them from that imposed on other persons. So much can be accepted but the effect of the earlier cut-off upon people living in remote areas and itinerant and homeless people is to be considered as one of the practical consequences of the impugned provisions.
The plaintiffs in reply to the Commonwealth contended that the statements made by the JSCEM in its report were not a substitute for evidence and could not establish a legitimate end for the impugned provisions when the material from independent authorities such as the AEC and the ANAO were to the contrary. This submission must be rejected. The rationale advanced by the JSCEM for amendment to the law was, in effect, incorporated by reference into the Second Reading Speech for the Amendment Act. To the extent that the purposes identified in the report fell within the scope of the constitutional mandate, it is not a condition of the validity of the legislation that those recommendations were based upon findings or assumptions of fact. The ends identified by the JSCEM were legitimate in terms of the constitutional mandate. But for the reasons already given that conclusion does not end the inquiry as to validity.
Importantly, there was nothing to support a proposition, and the Commonwealth did not submit otherwise, that the impugned provisions would avert an existing difficulty of electoral fraud. Nor was there anything to suggest that the AEC had been unable to deal with late enrolments. Indeed, it had used the announcement of an election, coupled with the existence of the statutory grace period, to encourage electors to enrol or apply for transfer of enrolment in a context in which its exhortations were more likely to be attended to and taken seriously than at a time well out from an election.
The plaintiffs, in their submissions, pointed to existing mechanisms to ensure the integrity and accuracy of the Rolls. These included the CRU process, the RMANS Address Register and more stringent proof-of-identity requirements introduced in connection with the 2006 amendments and reflected in s 98AA of the CEA and regs 11A and 12 of the Electoral and Referendum Regulations 1940.
The constitutional legitimacy of measures calculated to ensure that people who are not entitled to vote do not vote was, of course, accepted by the plaintiffs. They pointed, however, to the absence of any evidence of the existence prior to the Amendment Act of a significant number of persons voting who were not entitled to vote. They contrasted that absence with the evidence of the effect of the impugned provisions in preventing an estimated 100,000 citizens from being enrolled or transferring their enrolment.
The legal effect of the impugned provisions is clear. They diminish the opportunities for enrolment and transfer of enrolment that existed prior to their enactment. These were opportunities that had been in place as a matter of law for eight federal elections since 1983. They were consistent with an established executive practice which provided an effective period of grace for nearly 50 years before 1983. The practical effect of the Amendment Act was that a significant number of persons claiming enrolment or transfer of enrolment after the calling of an election could not have their claims considered until after the election. That practical effect cannot be put to one side with the observation, which is undoubtedly correct, that those persons were so affected because of their own failures to claim enrolment or transfer of enrolment in accordance with their statutory obligations. The reality remains that the barring of consideration of the claims of those persons to enrolment or transfer of enrolment in time to enable them to vote at the election is a significant detriment in terms of the constitutional mandate. That detriment must be considered against the legitimate purposes of the Parliament reflected in the JSCEM Report. Those purposes addressed no compelling practical problem or difficulty in the operation of the electoral system. Rather they were directed to its enhancement and improvement. In my opinion, the heavy price imposed by the Amendment Act in terms of its immediate practical impact upon the fulfilment of the constitutional mandate was disproportionate to the benefits of a smoother and more efficient electoral system to which the amendments were directed.
For the preceding reasons, I joined in the order made on 6 August 2010. I agree also that the application should be otherwise dismissed.
The principle applied by the European Court of Justice ("the ECJ") is substantially drawn from German law[539], although it may not be applied in the same way and the sub-principles may not be differentiated to the same degree[540]. Its principal application by the ECJ is in the sphere of freedom of economic activity[541], where the second sub-principle assumes particular importance.
[539]As to its sources see Schwarze, European Administrative Law, rev ed (2006) at 710-717.
[540]Schwarze, European Administrative Law, rev ed (2006) at 855.
[541]Schwarze, European Administrative Law, rev ed (2006) at 773.
The first of the three sub-principles, suitability, looks to the probable effectiveness of the legislative measure and unsuitability is rarely established[542]. Another word for suitability might be "adapted"[543], as earlier mentioned in connection with the phrase "reasonably appropriate and adapted"[544].
[542]Emiliou, The Principle of Proportionality in European Law, (1996) at 26, 29.
[543]Currie, The Constitution of the Federal Republic of Germany, (1994) at 20.
[544]See [435] above.
The test of reasonable necessity is the test more often applied by the ECJ in relation to cases involving measures which restrict the freedom of movement of goods. In a leading case, it was held that the objective of protecting consumers could have been achieved by a measure which meant a less drastic restriction of the free movement of goods[545]. An analogy with the test confirmed in Betfair, and in Lange, can be drawn. And it is pointed out that necessity does not involve only the fact that there may be a choice of alternative means, as that would deny legislative choice. The other measure has to be equally effective[546].
[545]Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Case 120/78) ("the Cassis de Dijon Case") [1979] 1 ECR 649. References to "less drastic means" are also found in United States constitutional jurisprudence: see "Less Drastic Means and the First Amendment", (1969) 78 Yale Law Journal 464.
[546]Emiliou, The Principle of Proportionality in European Law, (1996) at 30.
It is said that the sub-principle of proportionality in the strict sense is applied in a negative manner and that this serves to restrict its operation. A legislative measure will be held invalid only where it is unnecessarily harmful to the interest protected by the Constitution and is "manifestly disproportionate"[547]. How this is applied in particular cases may serve to further illuminate what is meant by that term. For present purposes, it may be observed that it is not dissimilar to statements made in Davis and Nationwide News, where the effects of the legislative measures on the relevant freedoms were said themselves to be too severe to qualify as proportionate.
[547]Emiliou, The Principle of Proportionality in European Law, (1996) at 36, 268.
As may be expected of an enquiry of this kind, factors such as the extent or severity of the restrictions effected by the legislative measures on the freedoms, or protected interests, and the objective pursued by the legislation, have been considered relevant in decisions of the ECJ and of the Federal Constitutional Court[548]. The latter Court requires that the seriousness of the effect of the legislative restriction, and the importance of the reasons said to justify it, be in adequate proportion to each other[549]. Much is said to depend upon the nature of the legislative provision and the sphere of protection of the freedom or interest involved[550].
[548]Tridimas, "Proportionality in European Community Law: Searching for the Appropriate Standard of Scrutiny", in Ellis (ed), The Principle of Proportionality in the Laws of Europe, (1999) 65 at 76-77; Schwarze, European Administrative Law, rev ed (2006) at 688.
[549]Schwarze, European Administrative Law, rev ed (2006) at 688.
[550]Emiliou, The Principle of Proportionality in European Law, (1996) at 32.
It has also been the concern of the High Court to assess the effect of the legislative measures in question, in relation to either or both of the legislative objective and the freedom protected. Less attention has been directed to the identification of the aspect of the freedom which is the subject of the protection. A freedom protected by the Constitution is generally assumed to have a status such that a significant reason is required to be given for any serious restriction of it. Roach did not concern a protected freedom, but rather a basal concept which informs the Constitution. It was that concept which was said to be relevant to an assessment of proportionality.
Lange and Roach
At issue in Lange was the effect of the defamation law of New South Wales on the freedom of political communication. It will be recalled that two conditions were said to be necessary if a freedom was not to invalidate a law affecting it. The first was that the object of the law had to be compatible with the maintenance of the system of representative government. The second was that the law had to be reasonably appropriate and adapted to achieve its legitimate object or end[551].
[551]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562.
Later in its reasons, the Court posed two questions as the test for whether a law impermissibly infringes upon freedom of communication. The first was whether the law had the effect of burdening the freedom. The second was expressed in the language of proportionality[552]:
"Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the [system of government prescribed by the Constitution]".
[552]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567.
It may be observed that the question appears to combine the two conditions earlier stated. The law's purpose (the "legitimate end") is that which is compatible with the maintenance of the prescribed system of government. The question is whether the law is reasonably appropriate and adapted to serve that end. So understood, the test may involve whether the operation and effect of the law's measures are reasonably necessary to that legitimate purpose. Indeed this is the approach which was taken.
In Lange the Court examined the common law rules of defamation in New South Wales by reference to whether there were other, less drastic measures by which the objectives of the law could be achieved, following the approach thought to have been taken by the majority in ACTV[553]. The Court was able to conclude that the law went no further than was necessary, for the protection of reputation, given the extended application of the law of qualified privilege[554]. It did so by adapting that law to accommodate the recognition of the constitutionally guaranteed freedom.
[553]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568.
[554]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 575.
A distinctive feature of Lange, so far as concerns tests of proportionality, is that the Court was able to achieve proportionality through its approach to the common law. By this means, it was able to conclude that proportionality existed based upon the test of reasonable necessity and was not required to undertake the task of assessing the extent of the effect of the defamation laws upon the freedom, as had been undertaken in some of the earlier cases involved with restrictions upon freedom of political communication.
McHugh J in Coleman v Power[555] considered that the fact that the Court in Lange adopted the example of ACTV was important to understanding what was intended by the second limb of the test in Lange. This must be accepted. His Honour's interpretation of what was said about ACTV led his Honour to conclude further that the test in Lange was intended to include, not only the compatibility of the law's objective, but also the compatibility of the measures undertaken to achieve the law's objective, with the prescribed system of government[556]. A relationship between legislative measures and the maintenance of the prescribed system of government is somewhat different from the relationship involved in tests of proportionality employed in previous cases. It is not obvious that the decision in Lange was reached by an assessment involving that relationship. Nevertheless, the relationship appears to have assumed importance in Roach.
[555](2004) 220 CLR 1 at 50-51 [93]-[94]; [2004] HCA 39.
[556]Coleman v Power (2004) 220 CLR 1 at 50-51 [94]; and see at 78 [196] per Gummow and Hayne JJ, 82 [213] per Kirby J.
The essential difficulty with the legislative disqualification in Roach, identified in the majority judgments, was that there was no evident reason or purpose beyond the obvious intention to remove a prisoner's ability to vote. It was arbitrary and did not differentiate between serious and other offences[557]. It may not be thought that much more was required for a finding that the law was disproportionate. Indeed, in the joint judgment it was said that what can be seen to be "disproportionate or arbitrary" may not meet the requirement that it be "reasonably appropriate and adapted for an end consistent or compatible with observance of the relevant constitutional restraint upon legislative power."[558] That constitutional restraint is identified in connection with the test of proportionality, as being what is necessary to the maintenance of the prescribed system of representative government.
[557]Roach v Electoral Commissioner (2007) 233 CLR 162 at 182 [23]-[24] per Gleeson CJ, 200 [90], 201 [93] per Gummow, Kirby and Crennan JJ.
[558]Roach v Electoral Commissioner (2007) 233 CLR 162 at 199 [85] per Gummow, Kirby and Crennan JJ.
The disqualification in question in Roach was compared, in the joint judgment, with another provided by the Electoral Act which, however, was considered to be valid. That provision disentitled persons who were incapable of understanding the nature and significance of voting, because they were of unsound mind. Although it limited the exercise of the franchise, it was held to do so[559]:
"for an end apt to protect the integrity of the electoral process. That end, plainly enough, is consistent and compatible with the maintenance of the system of representative government."
[559]Roach v Electoral Commissioner (2007) 233 CLR 162 at 200 [88] per Gummow, Kirby and Crennan JJ.
The effect of the disqualification in Roach, on the other hand, was "further to stigmatise" prisoners by denying them the exercise of the franchise[560]. In the discussion which followed, it was pointed out that the disqualification operated without regard to the nature of the offence committed, the length of the term of the imprisonment, sentencing policy and the offender's personal circumstances[561]. It was concluded that[562]:
"The legislative pursuit of an end which stigmatises offenders by imposing a civil disability during any term of imprisonment takes s 93(8AA) beyond what is reasonably appropriate and adapted (or 'proportionate') to the maintenance of representative government. The net of disqualification is cast too wide".
[560]Roach v Electoral Commissioner (2007) 233 CLR 162 at 200 [89] per Gummow, Kirby and Crennan JJ.
[561]Roach v Electoral Commissioner (2007) 233 CLR 162 at 200-201 [90]-[93] per Gummow, Kirby and Crennan JJ.
[562]Roach v Electoral Commissioner (2007) 233 CLR 162 at 202 [95] per Gummow, Kirby and Crennan JJ.
The last sentence in this passage reflects a view of the excessive effect of the legislative provision. It is difficult to see how it could be otherwise, absent a reason for complete disqualification. This might suffice for a conclusion that it was disproportionate. However, it was obviously considered necessary to further test proportionality. In doing so, the relationship which was identified as relevant was as between the effects of the legislative measure; namely, the further stigma of disqualification, and the "maintenance of the system of representative government".
The identification of a system as the interest which is the subject of constitutional protection might raise questions about how legislative effects upon it are to be assessed, not the least because it is a concept, the essential features of which are difficult to isolate. However, the joint judgment in Roach further particularised voting as the feature with which it was concerned. It was said that voting in elections lies at the very heart of the system of government for which the Constitution provides[563]. The effect of disqualification from it was therefore serious and no reason was given to explain this legislative choice.
[563]Roach v Electoral Commissioner (2007) 233 CLR 162 at 198 [81] per Gummow, Kirby and Crennan JJ.
It is of interest to observe that in Roach the disqualification which had been effected under the previous legislation was held to be valid. It disenfranchised prisoners who were serving sentences of three years or more. This was considered to be explicable. It reflected one electoral cycle, which had customarily formed a basis for a disqualification[564], and it could be seen to distinguish between serious lawlessness and less serious, yet reprehensible, conduct[565]. The earlier legislation could have permitted proportionality to be tested by reference to alternative, but less restrictive, measures, but it does not appear to have been approached in this way. Nevertheless, that test is one upon which the plaintiffs here rely.
[564]Roach v Electoral Commissioner (2007) 233 CLR 162 at 203 [98] per Gummow, Kirby and Crennan JJ.
[565]Roach v Electoral Commissioner (2007) 233 CLR 162 at 204 [102] per Gummow, Kirby and Crennan JJ.
Proportionality applied: the plaintiffs' case
The plaintiffs' challenge, at its first level, was said to draw upon Roach. It was that the provisions did not serve any legitimate end. There was no need for the provisions, because no problem had been identified by the AEC with respect to the integrity of the Electoral Rolls. This may raise a threshold question, rather than one involving any proportionality as between the legislation and its purpose.
The submission overlooks the terms of the AEC's advice to the JSCEM for the purpose of its report, in 2002, on the integrity of the Electoral Roll[566], namely:
"With the system we have – a compulsory enrolment system – it is as open as possible, but we have never said it is not possible to defraud the system. We have always said that it has not occurred in a systematic way."
The JSCEM on that occasion recommended that the AEC should further address "this potential risk to the electoral system."[567]
[566]Joint Standing Committee on Electoral Matters, The Integrity of the Electoral Roll: Review of ANAO Report No 42 2001-02, Integrity of the Electoral Roll, (2002) at 15 [2.43].
[567]Joint Standing Committee on Electoral Matters, The Integrity of the Electoral Roll: Review of ANAO Report No 42 2001-02, Integrity of the Electoral Roll, (2002) at 15 [2.44].
Further, the submission does not take account of the other reason given by the JSCEM for a shortening of the "period of grace". It was said that it was necessary to obtain greater compliance with enrolment obligations, not just at the time when elections were called but also in the period between elections. The JSCEM considered that the "period of grace" worked against such an objective and encouraged people to leave enrolment to the last moment.
It cannot be suggested that the measures in question are without justification, in contrast to the disqualification in Roach. Both objects are not only compatible with the maintenance of an orderly and effective system of voting, as an aspect of the system of representative government, they are important to it. The principal object seeks to ensure greater compliance with electoral obligations.
The point made by the plaintiffs in reply is relevant to proportionality. It was put that, accepting that there may be some concerns of the kind mentioned, less restrictive means could have been adopted to address them. Thus, the test of reasonable necessity, as assessed by alternative practicable means, is raised, as it was in Lange. Such a test assumes that the measures are sufficiently restrictive to warrant a search for alternative means. This is a matter which will require separate consideration.
It was not suggested by the plaintiffs that the Electoral Act should make provision for persons to enrol or transfer enrolment at all times up to polling. Nor was it suggested that the legislation should provide that the AEC should undertake enrolments itself, which has been mooted elsewhere. The plaintiffs' case was that they should have been allowed to have their claims considered at any time during the seven days prior to closure of the Rolls, as the Act had permitted prior to the 2006 amendments.
It is not sufficient, for this test of proportionality, that an alternative legislative measure be identified. The Court must be able to conclude that that alternative measure is just as effective for the legislative purpose as the measures employed. Such a conclusion is not possible here. There is nothing to suggest that allowing the longer period before the close of Rolls would be just as effective for the purpose of encouraging compliance with enrolment obligations and, therefore, nothing upon which to conclude that the opinion of the JSCEM was wrong.
Attention is then directed to a consideration of the effects of the legislative measures – in the first place, in connection with the pursuit of the objectives of the legislation and, in the second, by reference to the interest identified in Roach as subject to constitutional protection. It is necessary, in this regard, to bear in mind that it is the effects of the legislation which are relevant, not a view of their importance to the electoral system, about which different views have been held.
It must first be observed that what is restricted by the legislative measure is an entitlement to enrol, not an entitlement to vote. Nevertheless, voting is only possible upon enrolment and it must therefore be accepted that a possible effect of the measure is that a person's ability to vote at a particular election may be lost. But the effect is only possible and the loss is temporary.
No issue is taken by the plaintiffs with the aspect of the scheme of the Electoral Act which obliges enrolment and renders it an offence to fail to do so. The provisions in question do not themselves operate to render a person unable to vote. What is necessary to bring about that result is the failure of a person to fulfil his or her obligations within a specified period, when fulfilment is not attended by any obvious difficulty. It would be a curious application of a test of proportionality if a law, otherwise valid, was invalid because Parliament should recognise that people will not fulfil their statutory obligations. It is of interest to observe that the ECJ is said to be loath to apply the principle of proportionality when it is invoked in an attempt to justify a failure to comply with Community law[568].
[568]Tridimas, "Proportionality in European Community Law: Searching for the Appropriate Standard of Scrutiny", in Ellis (ed), The Principle of Proportionality in the Laws of Europe, (1999) 65 at 66.
The denial of enrolment and voting for an election, for a legitimate reason, does not intrude too far upon the system of voting. It is, and has always been, a part of that system. It reinforces the requirement that persons qualified to vote enrol in a timely way, which is conducive to the effective working of the system. No denial of the franchise is involved. It is not possible, logically, for the plaintiffs to suggest that these provisions are incompatible, but those allowing for a few more days for enrolment are not.
Conclusion
For these reasons I did not join in the orders made on 6 August 2010. I would have dismissed the proceedings with costs.