How people elect parliaments
The Australian High Court has upheld the legal validity of the current law that closes off changes to the national electoral roll early in the election campaign.
As in previous elections, voters will be required to join the roll, or update their personal details, within one week after the writs are issued. For the coming election the roll closure will take effect at 8pm on Monday 23 May.
Litigant Anthony Murphy had argued that the law caused significant disenfranchisement of voters, contrary to implications in the wording of the Constitution.
The 7-member Court was unanimous in rejecting the challenge, and decided the case within minutes of completing several hours of argument over the past two days.
The Court did not state its reasons, which will be released at a later date.
Voters can join the roll or change their details now through the Australian Electoral Commission.
Some more detail on the argument in this case today, and to follow up on comments below from Reg Jones …
The Court’s decision today in Murphy’s case was unanimous, and quick. After the arguments were completed the seven judges adjourned for barely 10 minutes, came back into court and the Chief Justice read out the result quickly and precisely. On the key question of whether the enrolment ‘suspension period’ legal provisions were invalid, the answer was a single word – “No”.
The speed of the decision was no doubt influenced by the fact that the statutory enrolment suspension date for the 2 July federal election is Monday 23 May – barely 11 days away. The Court has quite reasonably concluded that everyone – especially the Electoral Commission – needed an answer on this matter without delay.
With the result announced and no change to the law to be implemented, the written Reasons for judgement are not needed immediately, and the Court might take a few weeks to finish and release them. So as yet we don’t know precisely why the judges decided the way they did.
But we can read some things into the argument Mr Murphy’s lawyers made, which were obviously not accepted.
Reg comments: “NSW allows enrol and vote on election day, don’t see why the Commonwealth shouldn’t too.”
Indeed, other state systems were the subject of a good deal of discussion in Court. Essentially Murphy’s lawyers argued that the constitutional principle – following the Rowe case in 2010 – was that any election law which had a disenfranchising impact on voters needed to be justified by a substantial reason. In particular, as part of the legal approach of ‘proportionality testing’, a law would be invalid if alternative measures with less impact were available.
They therefore pointed to the enrolment systems now in force in NSW, Victoria and Queensland, all of which have been revised fairly recently to allow on-election-day enrolment and roll detail changing (the details of how these operate vary slightly). Since these systems were working well and had less of a disenfranchising impact, so Murphy’s lawyers argued, the Commonwealth law was legally unjustified and therefore invalid.
Not so, said the Commonwealth’s lawyers. They argued that the different systems represent different mixes of objectives and virtues. The Commonwealth system chose to create a ‘closed class’ of electors which allowed various forms of procedural certainty for the remaining weeks of the election process. By contrast the state systems allowed more enrolment flexibility, but came with organisational challenges and with potential delays after election day. The Commonwealth argued that each mix was a legitimate option for any of the state or federal parliaments to choose from.
The argument, in the end, was about whether the Commonwealth Parliament was free to choose between systems, or whether the Constitution made it choose the system with the more flexible enrolment approach.
While as mentioned above the written reasons are still to come, it’s pretty clear that the Court has favoured the Commonwealth lawyers’ interpretation.
In short, Reg may be right: the Commonwealth Parliament could legislate for same-day enrolment if it wanted to, but the Court is apparently saying that it isn’t forced to do so. The issue is a matter for Parliament to decide, not one where the Constitution dictates an answer.
Reg also comments: “But the Justices must not see it as a constitutional right.” That’s exactly right. All the precedent cases insist that none of the constitutional principles in issue here directly create an individual right to any particular form of enrolment, voting or other process. The whole discussion is about whether there is a limit on the otherwise wide-ranging power of Parliament to make law.
The distinction may seem slim to non lawyers, but it is a big one for legal thinkers.
This is why so few challenges to Commonwealth legislative power get up. The Court needs to be very satisfied that the Constitution contains a clear implication that legislative power is limited before it will take the serious step of invalidating legislation passed by the democratically elected Parliament.
Also, stay tuned for tomorrow (Friday 13th): the result in Bob Day’s challenge to the Senate voting laws is to be handed down tomorrow, and written reasons might be available too.
Legal experts (such as Professor Anne Twomey) and court observers have given Day’s argument low odds of success, but gave Murphy’s argument at a 50/50 chance of success. With Murphy losing to a unanimous judgement, Day’s odds are looking pretty bleak.
One other aspect of the arguments in the Court was the plaintiff’s argument about the constitutional impact of technological change.
The Commonwealth has had a system of roll closure since the first electoral legislation in 1902. The Court heard in the Murphy case that from the introduction of permanent rolls in Britain and Australia in the mid-late 19th century, roll closure was a standard feature, and some rolls were actually closed on an annual basis regardless of when elections were called.
The argument put in the Murphy case was that, whatever the practical need for closing the roll to facilitate printing and delivering rolls to polling places in the days before modern electronic communications, that need has now disappeared.
In the modern world much faster, more accurate and instantly distributed data can be managed by the electoral authorities. Indeed, the current federal electoral law allows online enrolment (which is still checked by electoral officials) as well as electronic data-driven automatic updates of voter information. In polling places officials now have access to a ‘notebook roll’ for online double-checking of the roll in case of errors.
All this, the plaintiffs said, had removed the substantial justification for closing the roll, providing another reason for the Court to find the legislation invalid.
Clearly the Court did not agree. The questioning by the judges to this argument was fairly negative, with multiple judges commenting that the constitutional law about validity might become ‘unstable’ if it required case-by-case assessments by the Court of the capabilities resulting from changing technology.
The Court also suggested that this line of reasoning would have the effect of obliging Parliament to keep laws constantly under review to preempt the impact of such changes.
In fact, Parliament has a very thorough system for reviewing electoral law. The Joint Standing Committee on Electoral Matters has since the mid 1980s run a comprehensive inquiry into electoral law every term of federal Parliament.
Every JSCEM report for the last 7 terms (reports released in 1997, 2000, 2003, 2005, 2009, 2011, and 2015 (final report)) has examined the law relating to the electoral roll, and two special reports (in 2001 and 2011) have focused specifically on electoral roll issues.
It can’t therefore be said that Parliament neglects the maintenance of electoral law. But in Murphy’s case the Court did not support the argument that the law – or the Parliament itself – must respond to new technological possibilities.
Again, we will need to wait for the published reasons for judgement, but for the moment it would seem that advances in technology will not in themselves be regarded as changing the extent of the Parliament’s broad constitutional power to legislate for the electoral system.
Let us know the reasons as soon as they are out, Malcolm.
NSW allows enrol and vote on election day, don’t see why the Commonwealth shouldn’t too.
But the Justices must not see it as a constitutional right.