News: The High Court’s work during federal elections

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.)

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

3 thoughts on “News: The High Court’s work during federal elections

  1. My initial assumption was that the challenge to the new voting laws had little basis in law, but reading Professor Twomey’s analysis has ironically convinced me of the opposite (even though her piece is meant to support the new laws, which she is a supporter of) in large part because she raises the legal objections to the laws but appears to answer those objections more in terms of ideology than legality. I now think the challenge at least arguable, primarily on the basis of votes being able to exhaust.

    Professor Twomey notes the argument that votes being able to exhaust would mean an infringement of section 7 of the Constitution’s “directly chosen by the people”, which is interpreted as a universal franchise unless there is a “substantial reason” for the exclusion, compatible with the maintenance of the system of representative government, such as age limits on voting and people of “unsound mind” being unable to vote.

    Professor Twomey’s response is well, people are not forced to exhaust their vote under the new system, it’s a choice, and she leaves it there without further consideration. But the system has been set up in the knowledge that despite all the negative publicity for group voting tickets the vast majority of people used group voting tickets and not below-the-line voting: exhausting has been made much easier and more attractive than non-exhausting.

    But even worse, and perhaps more fatally, to avoid exhausting while voting for one of the two or three biggest parties is easy. To avoid exhausting while putting the biggest parties last will be a massive chore, and it is this difference- the difficulty people will have if they want to put the biggest parties last without exhaustying compared with the simplicity of putting them first without exhausting- the systemic favouring of one set of parties might persuade the Court that the new system will not create a Senate properly “directly chosen by the people”.

    Professor Twomey does give the example that the Court has allowed party registration laws that require a minimum 500 party members as valid to protect the process, but this is not the same situation. This affects votes for perfectly valid parties and independents who are properly on the ballot paper. I think this situation can be and perhaps should be distinguished from the Mulholland case for that reason.

    As such, Professor Twomey has mostly convinced me there is actually a case to answer although not an overwhelming one so it will be interesting to see how it turns out.

  2. The Solicitor-General was in fine form in responding to Senator (or should that be Mr) Day’s application.

    And reading his counsel’s submissions it is not hard to see why. The proceeding obviously lacks merit when (a) he obviously could not find a silk willing to represent him in the case (because if the issue was constitutionally arguable the silks would line up regardless) and (b) the submission’s are mostly a political philosophy essay (and a bad one at that) on the ‘disadvantages’ of the proposed system of Senate elections.

    The full court should not be hearing matters of such little merit.

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