Rowe v Electoral Commissioner

Case [2010] HCA 46

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

SHANNEN 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
M101/2010

ORDER

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

  1. 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…

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AGLC
Rowe v Electoral Commissioner [2010] HCA 46
Case
[2010] HCA 46
Decision Date

CaseChat Overview and Summary

The case of *Rowe v Electoral Commissioner* concerned a challenge to amendments made to the *Commonwealth Electoral Act 1918* (Cth) by the *Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006* (Cth). The plaintiffs sought a declaration that specific items within the amending Act were invalid and of no effect. The dispute centred on whether these amendments, which significantly altered the timeframe for enrolment and transfer of enrolment claims before an election, contravened constitutional requirements for the direct election of representatives.

The High Court was required to determine whether the amendments, by precluding claims for enrolment received after the issue of writs and claims for transfer of enrolment received shortly thereafter, operated as a disqualification from voting. If a disqualification was found, the Court had to consider whether it was for a substantial reason, particularly in light of the constitutional mandate that members of the House of Representatives be "directly chosen by the people" under sections 7 and 24 of the Constitution. The Court also considered whether the legislative power of the Commonwealth extended to enacting such amendments.

The Court reasoned that the amendments effectively removed a long-standing grace period for enrolment and significantly abridged the period for transfers of enrolment, thereby disentitling otherwise qualified persons from voting. This disentitlement was found to be a disqualification that was not for a substantial reason, and thus contrary to the constitutional requirement for representatives to be "directly chosen by the people". The Court applied the principles established in *Roach v Electoral Commissioner* concerning the constitutional limitations on the Parliament's power to regulate the franchise.

The Court declared that the impugned provisions of the *Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006* were invalid. The second defendant was ordered to pay the plaintiffs' costs, and so much of the plaintiffs' application as remained after a prior order was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ
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

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ

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.