Voting Rights: HRLRC and GetUp! Action in High Court

On 23 July 2010, the HRLRC and GetUp! announced proposed action in the High Court of Australia to promote and protect voting rights for disadvantaged groups. The case is 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 results, inter alia, 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.

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.

The purpose of the relevant provisions of the Amendment Act was stated to be to enhance the integrity of the electoral roll.  According to the AEC, however, early close of the rolls does ‘not improve the accuracy of the rolls for an election’ and makes them ‘less accurate, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received’.  An Australian National Audit Office performance audit of the roll in 2001/02 found that it was of ‘high integrity’ and that there was no evidence of widespread or organized fraud that needed to be addressed by closing the rolls early.

The Parliamentary Joint Standing Committee on Elections (2001, 2005) and the Senate Finance and Public Administration Committee (2006) have consistently found that the voters most adversely affected by the early close of the rolls are young Australians, and those with limited access to information, knowledge of the electoral system or means of enrolment, including people experiencing homelessness, Indigenous Australians, people with disability and Australians from non-English speaking backgrounds.  By way of contrast, Article 25 of the International Covenant on Civil and Political Rights (which has been ratified by Australia) provides that every citizen has the right and should have the opportunity, without discrimination or any unreasonable restrictions, to vote.  Article 25 has been interpreted by the UN Human Rights Committee to provide that ‘States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed.’ (HRC, General Comment No 25).

Pursuant to the principles established by the High Court in Roach v AEC, the plaintiffs will argue that the early close of the rolls is a limitation or impairment of the right to vote, that the purpose of the impairment is not demonstrably justified, and that the means of achieving that purpose are not reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government.  The plaintiffs will also argue that the early close of the roll and the consequent disenfranchisement of otherwise eligible voters, is incompatible with the Constitutional requirement (ss 7 and 24) that the Houses of Parliament be ‘directly chosen by the people’.