An election is of obvious interest to the legislature and executive. However, it is also increasingly relevant to the work of the government’s third branch. Each of the last three federal elections has required the Court to resolve complex questions urgently:
- two months prior to the 2007 election, the Court struck down legislation from 2006 barring all prisoners from voting.
- two weeks before the 2010 election, the Court struck down legislation from 2006 removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
- five months after the 2013 election, Hayne J, sitting as the Court of Disputed Returns, declared the election of Western Australian senators void due to the loss of 1370 ballot papers.
The 2015 election, whenever it occurs, will continue this trend.
So far, two pre-election High Court cases have been announced. First, there is an action designed to ensure that the electoral role stays open until polling day. The case is currently in directions before Nettle J, who raised the issue of its timing with the challenger’s lawyer, Ron Merkel QC, back in February:
HIS HONOUR: Yes, thank you. Mr Merkel, how soon are you hoping to get this on for hearing?
MR MERKEL: Your Honour, I think the parties would say as soon as practicable. The timeframe, of course, is geared very much to having an orderly hearing and determination prior to the issue of writs for the next election and – – –
HIS HONOUR: As I read, it could be as early as May, although that is unlikely.
MR MERKEL: Yes. Your Honour, that is the problem, we are all conscious of what happened in Rowe where the case actually had to come on and was brought on for hearing and determination during the election itself…
…HIS HONOUR: It is not relevant, but I am reminded of another Murphy Case in which we were both involved some time back, Mr Merkel.
(The latter was a reference to yet another case the High Court was involved in before an election, the failed challenge to the signing of the East-West link contract prior to Victoria’s 2014 state election.) Second, there is a recently announced constitutional challenge to just enacted legislation altering the way votes are cast for the federal senate. Sydney Law School’s Anne Twomey analyses the prospects of that challenge here.
Such matters demand considerable speed and flexibility from the High Court in order to resolve such disputes in time for any orders to be implemented by the Australian Electoral Commission. In the case of the 2010 challenge, the timeline was as follows:
- 17 July: Julia Gillard announces the federal election.
- 26 July: Proceedings commenced in the High Court.
- 29 July: Hayne J orders a hearing the following week
- 4/5 August: Full Court hearing before 7 judges.
- 6 August: Majority announces orders invalidating the amending legislation.
- 21 August: Election held.
- 15 December: Court publishes its 490 paragraph reasons for its 6 August order.
This is by any measure an extremely impressive effort by the Court, avoiding the prospect of the challenge’s de facto failure or, still worse, a threat to the validity of the resulting election. A downside is that such efforts may impinge on the Court’s other work. A possible example: on 27 July 2010, the day after the grace period challenge was brought, the High Court convinced an initially reluctant criminal defendant to put off a scheduled hearing of his appeal against a conspiracy conviction and instead pursue a constitutional argument suggested by the Court itself, with arguably negative results for Australian criminal law (discussed by me here and here.)