High Court Recognises that Constitution ‘Embeds’ a Right to Vote and a ‘Fully Inclusive Franchise’ in Landmark Constitutional Case

Summary

On 15 December 2010, the High Court of Australia published reasons in Rowe v Electoral Commissioner [2010] HCA 46, having earlier pronounced orders in the matter on 6 August. 

The case, which was heard and determined just prior to the 2010 Federal Election was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.  The Amendment Act resulted in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details.  Previously, the electoral roll remained open for a period of seven days after the issue of the writ.  The Amendment Act was said to reduce the likelihood of fraudulent voter enrolment and promote electoral integrity. 

Decision

According to the AEC, historically, the calling of an election has resulted in significant numbers of persons enrolling or changing enrolment during the 7 day period, particularly young Australians.  The 7 day period enabled the AEC to advertise and promote enrolment and target particular groups with information campaigns, including Indigenous Australians and people experiencing homelessness.  At the 2004 Federal Election, approximately 423,000 people enrolled, re-enrolled or updated enrolment during the 7 day period and it was an agreed fact in the current proceeding that, for the purpose of the 2010 Federal Election, there were ‘approximately 100,000 claims for enrolment received after the cut-off deadlines, but before the date for the closing of the Rolls prior to the Amendment Act’. 

By a majority of 4 (French CJ, Gummow, Crennan and Bell JJ) to 3 (Hayne, Heydon and Keifel JJ), the High Court found that the relevant provisions of the Amendment Act were unconstitutional in that they were incompatible with the requirements of ss 7 and 24 of the Constitution that the Houses of Parliament comprise of members ‘directly chosen by the people’. 

Set out below are extracts from some of the key paragraphs from the judgments.

 Chief Justice French

25. While "common understanding" of the constitutional concept of "the people" has changed as the franchise has evolved, "the people" is not a term the content of which is shaped by laws creating procedures for enrolment and for the conduct of elections.  If such a law denies the right to vote to any class of person entitled to be an elector, it denies it to that class of "the people".  Such a law may be valid.  But the logic of the constitutional scheme for a representative democracy requires that the validity of such a law be tested by reference to the constitutional mandate of direct choice by "the people".  Where, as in the present case, the law removes a legally sanctioned opportunity for enrolment, it is the change effected by the law that must be considered.  It is not necessary first to determine some baseline of validity.  Within the normative framework of a representative democracy based on direct choice by the people, a law effecting such a change causes a detriment.  Its justification must be that it is nevertheless, on balance, beneficial because it contributes to the fulfilment of the mandate.  If the detriment, in legal effect or practical operation, is disproportionate to that benefit, then the law will be invalid as inconsistent with that mandate, for its net effect will be antagonistic to it.  Applying the terminology adopted in Roach, such a law would lack a substantial reason for the detriment it inflicts upon the exercise of the franchise.  It is therefore not sufficient for the validity of such a law that an election conducted under its provisions nevertheless results in members of Parliament being "directly chosen by the people".

27. The Commonwealth sought to support the amendments as procedural laws "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government".  The fixing of some cut-off date for enrolment consequent upon the issue of writs for an election was appropriate and adapted to that end. 

28. For the reasons already given, the characterisation of an electoral law as procedural, or in the nature of electoral machinery, does not of itself justify collateral damage to the extent of participation by qualified persons in the choice of their parliamentary representatives.  The detriment, even if contributed to by the failure of those persons to fulfil their duties under the CEA, is still a detriment "of concern to the whole Commonwealth".

…

75.Importantly, there was nothing to support a proposition, and the Commonwealth did not submit otherwise, that the impugned provisions would avert an existing difficulty of electoral fraud.  Nor was there anything to suggest that the AEC had been unable to deal with late enrolments.  Indeed, it had used the announcement of an election, coupled with the existence of the statutory grace period, to encourage electors to enrol or apply for transfer of enrolment in a context in which its exhortations were more likely to be attended to and taken seriously than at a time well out from an election.

...

77. The constitutional legitimacy of measures calculated to ensure that people who are not entitled to vote do not vote was, of course, accepted by the plaintiffs.  They pointed, however, to the absence of any evidence of the existence prior to the Amendment Act of a significant number of persons voting who were not entitled to vote.  They contrasted that absence with the evidence of the effect of the impugned provisions in preventing an estimated 100,000 citizens from being enrolled or transferring their enrolment.

78. The legal effect of the impugned provisions is clear.  They diminish the opportunities for enrolment and transfer of enrolment that existed prior to their enactment.  These were opportunities that had been in place as a matter of law for eight federal elections since 1983.  They were consistent with an established executive practice which provided an effective period of grace for nearly 50 years before 1983.  The practical effect of the Amendment Act was that a significant number of persons claiming enrolment or transfer of enrolment after the calling of an election could not have their claims considered until after the election.  That practical effect cannot be put to one side with the observation, which is undoubtedly correct, that those persons were so affected because of their own failures to claim enrolment or transfer of enrolment in accordance with their statutory obligations.  The reality remains that the barring of consideration of the claims of those persons to enrolment or transfer of enrolment in time to enable them to vote at the election is a significant detriment in terms of the constitutional mandate.  That detriment must be considered against the legitimate purposes of the Parliament reflected in the JSCEM Report.  Those purposes addressed no compelling practical problem or difficulty in the operation of the electoral system.  Rather they were directed to its enhancement and improvement.  In my opinion, the heavy price imposed by the Amendment Act in terms of its immediate practical impact upon the fulfilment of the constitutional mandate was disproportionate to the benefits of a smoother and more efficient electoral system to which the amendments were directed.

Justices Gummow and Crennan

160. The position then is reached that the 2006 Act has the practical operation of effecting a legislative disqualification from what otherwise is the popular choice mandated by the Constitution. It is no sufficient answer that Roach is not reached because the disqualification does not apply to those who have promptly enrolled or claimed transfer of enrolment and only applies to those who have failed to do so, and this state of affairs is the product of permissible legislative choice.  Rather, the relevant starting point is to ask whether, at the time when the choice is to be made by the people, persons otherwise eligible and wishing to make their choice are effectively disqualified from doing so.

161. If so, the question then becomes whether, as Gleeson CJ put it in Roach, there has been broken the rational connection necessary to reconcile the disqualification with the constitutional imperative, and whether, as Gummow, Kirby and Crennan JJ put it in the same case, "Is the disqualification for a 'substantial' reason?"

…

167. A legislative purpose of preventing such fraud "before it is able to occur", where there has not been previous systemic fraud associated with the operation of the seven day period before the changes made by the 2006 Act, does not supply a substantial reason for the practical operation of the 2006 Act in disqualifying large numbers of electors.  That practical operation goes beyond any advantage in preserving the integrity of the electoral process from a hazard which so far has not materialised to any significant degree.

Justice Bell

367. Recalling the remarks of Isaacs J in Kreglinger, the constitutional principles which distinguish between oligarchic and democratic government were fully understood at the time of the commencement of the Constitution and were always in consideration in respect of the drafting of ss 7 and 24.  Sections 7 and 24 of the Constitution do not prescribe any particular franchise.  However, they constrain the Parliament from instituting a franchise which will result in an oligarchic representative government and mandate a franchise which will result in a democratic representative government, the preferable term used by Mason J in McKinlay to describe the system of government, prescribed and maintained by the Constitution.  What is sufficient to constitute democratic representative government has changed over time, as conceptions of democracy have changed, to require a fully inclusive franchise – that is, a franchise free of arbitrary exclusions based on class, gender or race.

368. To recognise that ss 7 and 24 mandate a democratic franchise, for the purposes of the popular elections which they prescribe, is to recognise the embedding of the right to vote in the constitutional imperative of choice by the people of parliamentary representatives.

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384. In all those circumstances, the impugned provisions have not been shown to be necessary or appropriate for the protection of the integrity of the Rolls, as that object was advanced by the Commonwealth.  First, this is because the Australian Electoral Commission had no difficulty in processing the volume of late enrolments which occurred with the previous seven day cut-off period.  Secondly, to seek to discourage a surge of late claims for enrolment by disentitling or excluding those making them constitutes a failure to recognise the centrality of the franchise to a citizen's participation in the political life of the community.  Thirdly, the main reason put forward by the Commonwealth as the justification for the impugned provisions – namely, that they will operate to protect the Rolls from the risk of, or potential for, systematic electoral fraud – is to protect the Rolls from a risk or potential which has not been substantiated to date.  Accordingly, the justification put forward to support the impugned provisions does not constitute a substantial reason, that is, a reason of real significance, for disentitling a significant number of electors from exercising their right to vote for parliamentary representatives in the State and Subdivision in which they reside.  The impugned provisions cannot be reconciled with the constitutional imperative of choice by the people of those representatives.

Justice Hayne (dissenting)

222-3. Neither s 7 nor s 24, with their use of the expression "directly chosen by the people", requires the Parliament to establish or maintain an electoral system which will maximise the participation of eligible electors.  That is not to say, of course, that maximum participation in the electoral process cannot readily be seen as a desirable civic value and as a worthy legislative objective.  But whether and to what extent it is pursued is a choice which the Constitution confides to the Parliament.

…

266. The content of the constitutional expression "directly chosen by the people" neither depends upon, nor is informed by, what are seen from time to time to be the politically accepted or politically acceptable limits to the qualifications that may be made to what is otherwise universal adult suffrage.  As I explained in Roach, reference to "common understanding" or "generally accepted Australian standards" does not provide a valid premise for consideration of the issues in this matter.

Background

The challenge to the early close of the rolls was jointly conceived and coordinated by the Human Rights Law Resource Centre and GetUp! and builds on the previous work of the Centre in establishing constitutional protection of the right to vote in the landmark High Court case of Roach v The Commonwealth [2007] HCA 43.

The matter was run pro bono by an outstanding legal team comprising RonMerkelQC, Kristen Walker, Fiona Forsyth and Neil McAteer of Counsel, together with Mallesons Stephen Jaques.

The decision is at www.austlii.edu.au/au/cases/cth/HCA/2010/46.html. 

Philip Lynch is Executive Director of the Human Rights Law Resource Centre