Rowe & Anor v Electoral Commissioner

The High Court of Australia considered a dispute between the Electoral Commissioner and two individuals, Mr. Rowe and Mr. Singh, concerning the validity of their enrolment as voters. The Commissioner sought to remove the names of Mr. Rowe and Mr. Singh from the electoral roll, alleging they were not entitled to be enrolled. The core of the dispute revolved around whether the applicants met the residency requirements for enrolment under the *Commonwealth Electoral Act 1918* (Cth).

The High Court was required to determine whether the applicants satisfied the definition of "ordinarily resident" in Australia for the purposes of enrolment. Specifically, the Court had to consider the interpretation of "ordinarily resident" in the context of individuals who had spent significant periods overseas but maintained a connection to Australia, and whether their intention to return was sufficient to maintain their ordinary residence. The Court also had to consider the evidentiary burden on individuals seeking to establish their entitlement to enrolment.

The Court reasoned that the concept of "ordinarily resident" involves a factual assessment of where a person is habitually and naturally living. It is not solely determined by legal or technical considerations, but rather by the reality of a person's life. The Court emphasised that while an intention to return to Australia could be a relevant factor, it was not determinative if the individual's actual life and habits were established elsewhere for an extended period. The Court found that Mr. Rowe and Mr. Singh had not demonstrated that they were ordinarily resident in Australia during the relevant periods, as their absences and activities overseas indicated that their habitual place of residence had shifted.

The High Court allowed the appeal in part, finding that Mr. Rowe was not ordinarily resident in Australia and therefore not entitled to be enrolled. However, the Court found that Mr. Singh was ordinarily resident in Australia and was entitled to be enrolled. The orders reflected these findings, with the Electoral Commissioner's application being dismissed in relation to Mr. Singh and upheld in relation to Mr. Rowe.