On Elections

How people elect parliaments

High Court ponders second electoral challenge

Following last weeks’s challenge to the new voting procedures for electing senators, Australia’s High Court today heard a challenge to the statutory cut-off date for Australians to join the electoral roll or change their enrolment details.

Under current law, a ‘suspension period’ for all changes to enrolment details kicks in one week after the official issue of the election writs. For the coming election that period will start at 8pm on Monday 23 May.

Voters can change their details now through the Australian Electoral Commission.

Melbourne resident Anthony Murphy – who had a previous High Court win challenging the Victorian government’s handling of the East-West Link freeway development – is arguing that the suspension period provisions are not valid law.

In Court today Murphy’s barrister presented the case, arguing that previous precedents had shown that where any law potentially prevents a qualified person from voting, a substantial reason for the law must be demonstrated.

The Court is being asked to consider the unusual claim that while the suspension of electoral roll changes might have been necessary in the early years of the Commonwealth – when communications and printing technology were very different – the law has since lost that justification and has at some point in time become invalid.

image - Australian High Court

Australia’s High Court needs to decide two legal challenges which will
affect the conduct of the July 2 federal election

Murphy’s case argues that the prevention of these people from voting, or from voting correctly, means that the Constitution’s mandate that the members of Parliament are “chosen by the people” is being breached.

Murphy’s lawyer cited a range of modern practices, such as automatic enrolment updates by the Electoral Commission as well as online roll updating facilities that voters can use, as demonstrating that the suspension period no longer serves a constitutionally necessary purpose.

If Murphy is right, changes in enrolment might be allowed even on polling day.

According to Murphy’s submission to the Court, at elections between 2004 and 2013 large numbers of enrolment claims, ranging from 143,636 in 2007 to 228,585 in 2013, were lodged during the suspension period and – according to the current law – were deliberately not processed.

While some roll change applications appeared to be only address changes within an electoral division, at the past 4 elections between 52,000 and 60,000 of the applications were for potential new enrolees, and 56,000 to 95,000 were for people changing their electoral division or even moving between states.

The Electoral Commission already had procedures for placing uncertain ballot papers in special ‘declaration envelopes’ to be checked later.

The High Court heard from Murphy’s lawyer today, and will hear lawyers for the Commonwealth Government tomorrow defending the existing legislation.

Meanwhile, a decision on Family First Senator Bob Day’s separate challenge to the Senate voting laws – which were passed by Parliament in April to introduce optional preferential voting and abolish the former ‘group voting ticket’ style of voting – is expected to be handed down on Friday morning.

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This entry was posted on May 11, 2016 by in Australia, Constitutional courts, Current issues.
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