How people elect parliaments
Public prosecutors have dropped charges against two Victorian residents alleging that they had illegally enrolled in the wrong electoral division at the 2013 federal election.
The result is to be welcomed in principle. The current law – and its enforcement in this case – involved a potential threat to the right of all Australians to vote.
The case involved two young Victorians who were active in supporting independent candidate Cathy McGowan, who was elected to the north Victorian rural seat of Indi at the 2013 election after a major grassroots campaign.
The two people charged with mis-enrolling were former residents in the Indi area but were also studying and living in Melbourne. In advance of the 2013 election they registered to vote at addresses in Indi at which they had a past (and, they said, continuing) residence.
When their voter registration was challenged (by sources whom the police and prosecutors have declined to identify, but apparently political opponents), the defendants argued that they had followed the advice on the Electoral Commission’s website and believed they were entitled to register at the addresses in question.
The case raises squarely the issue of the proper electoral enrolment of young people from rural families who are living in cities for the purpose of university study.
Where should such people be enrolled? What community do they most identify with for the purpose of national political representation? Should such people be allowed to have a choice of the location of their registration?
The Australian Constitution, as interpreted by the High Court, provides that members of Parliament are to be chosen by “the people”, who are also called “electors”.
The Constitution allows Parliament to define who make up the electors, and it has done so through the Commonwealth Electoral Act.
But important rulings of the High Court in 2007 and 2010 have made clear that the constitutional language should be read as a protection that all of “the people” must be involved in each election.
In both cases provisions of Parliament’s electoral legislation that unreasonably prevented some of the people from participating in the election were held to be invalid.
Problem such as the Indi voters case arise because the current Act uses a complex system of divisional enrolment, using place of residence as the basis of its records.
In effect, every elector must first become enrolled in one of the 150 House of Representatives electoral divisions.
The Act then creates a separate roll for each division. This enrolment in turn is used to determine which election of senators the voter must also participate in.
Parliament has made participation in the election of both houses compulsory for all electors.
The legislation sets out a requirement that a person “lives at an address … and has lived at that address for a period of one month last past” before being eligible to be added to a specific divisional roll.
Worded this way, the law creates the possibility that individuals who change living arrangements (or whose living arrangements involve a lot of mobility) might find themselves left off all the relevant divisional rolls, even though they at all times met the constitutional and statutory definition of Australian electors.
There are various ways in which enrolment problems might emerge under this scheme. The law imposes cut-off dates for enrolment changes in the lead up to each election – the very period in which most people pay attention to their enrolment. The severity of a recently revised version of this cut-off was the subject matter of the 2010 litigation.
Regular Electoral Commission attempts to purge divisional rolls of people who are no longer at their previous address can add to the possibility of disenfranchisement.
Amendments to the legislation passed by Parliament in 2012 improved the situation by allowing for the Commission to automatically update enrolment data using new address information from driver’s license registrations, utility bills and other secondary sources.
When electoral boundaries change around voters, it is also the responsibility of the Commission to revise voters’ enrolment details automatically.
However the system can still result in people dropping off the rolls when they move residence, even if they only move locally within an electoral division.
Moving within a state can potentially cost someone not only their vote for the House of Representatives, but also for elections of senators – even though there can be no doubt that the voter’s state residency and constitutional entitlement are unchanged.
The Indi voter case highlights another aspect of the laws surrounding enrolment, about whether voters who have more than one significant residential connection – such as university students from rural families – should have a choice of enrolment location.
The current law appears to presume that there can be only one location at which a person “lives”.
The Constitution clearly prohibits plural voting, but in the Indi voters’ case there was never any suggestion that the voters had attempted to be enrolled, let alone vote, more than once.
Had the charges not been dropped, the matter might have ended up in the High Court. The Court’s established standards for deciding these cases would have first asked whether the electoral law created a potential burden on the ability of the defendants to vote. Rejecting their enrolment at the location they claimed might have met that test.
If so the Commonwealth government, in defending the legislation, would have needed to show that the enrolment requirements served a legitimate purpose (such as perhaps ensuring the accuracy of the rolls) and also did so in an appropriate manner, including that no less restrictive provisions would have been sufficient.
The abandonment of the prosecution of the Indi voters may represent a calculation that the legislation would have been at risk in a High Court challenge. The Court is already considering a current challenge to recent changes to the ballot paper design for electing senators.
Of course, the outcome appears to also involve the prosecutors judging that the initial court would find that the defendants – who stated that they followed the Electoral Commission’s advice relating to keeping a home address while absent studying – were simply entitled to do what they did.
In any case, Parliament could easily clean up these confusions by creating a new system in which all eligible voters are registered once on a single integrated national roll, with residential address details sorting voters into relevant lower house divisions, states and territories as needed. That way there would be no risk that ordinary personal mobility, changes of residency or data issues could see people lose their vote.
If it did legislate in that way, Parliament could also develop a specific solution to the rural uni-student scenario – as well as for other people with multiple significant residencies – possibly by providing that such voters could simply select among any one location where they had a connection that met specified minimum criteria.