Murphy v Electoral Commissioner

The High Court has decided a constitutional matter challenging the Commonwealth Parliament’s power to legislate to suspend the processing of claims for enrolments to vote and transfers of enrolments to vote from seven days after the issue of writs for an election. The plaintiffs argued that the principle in Rowe v Electoral Commissioner [2010] HCA 46, in which the Court held that Parliament could not close the rolls on the day the writs are issued, should be extended up to polling day (or, at least, more than the current seven day period), and that the current arrangements contravene the requirements contained in ss 7 and 24 of the Constitution. Central to these contentions was that technological improvements and the availability of resources for extending the period before closure of the rolls closer to polling day means there is no substantive reason to suspend the rolls from seven days after the date of the issue of the writs. The defendants contended that this set of arguments relied on unduly narrow interpretations of the scope of Parliament’s power and responsibilities under ss 7 and 24 for establishing an electoral system that gives effect to representative government based on direct choice.

After a short adjournment following the close of oral submissions on 12 May 2016, the Court unanimously answered the questions in the special case, dismissing the plaintiffs’ challenge. The full order appears below, but the question central to the challenge was formulated and answered as follows:

Question 2

Are any or all of sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5) and 118(5) of the Commonwealth Electoral Act 1918 (Cth) contrary to ss 7 and 24 of the Constitution and therefore invalid?

Answer

No.

All judges of the Court joined in answering the questions in this form (see [6], [44], [83], [118], [257], [259]), albeit for different reasons, in six judgments.

For French CJ and Bell J, the plaintiff’s case depended on generalising the principles in Roach v Electoral Commissioner [2007] HCA 43 (in which the Court found a law disqualifying classes of prisoners from voting in federal elections to be invalid) and Rowe, and on characterising the challenged provisions as a ‘burden upon the realisation of the constitutional mandate of choice by the people’ (at [25], and see [42]). After reviewing the idea of a ‘substantial reason’ for limiting the franchise (see [28]–[32]) and the development of a general proportionality criterion in Rowe (see at [34]ff), French CJ and Bell J focused on the plaintiffs’ invocation of the proportionality approach articulated recently in McCloy v New South Wales [2015] HCA 34, which examines suitability, necessity and adequacy in balancing the law and the purpose served (see [37]). While the approach in McCloy could be applied to laws burdening a constitutional guarantee, immunity or freedom such as the franchise, that approach was not ultimately appropriate here, at [39]:

The plaintiffs in the present case were concerned with provisions reflecting long-standing limits on the times at which a qualified person could be registered on the Roll. Theirs was not a case about a law reducing the extent of the realisation of the constitutional mandate. It was ultimately a complaint that the legislation did not go far enough in the provision of opportunities for enrolment. The difficulty confronting their case was demonstrated by their attempt to apply the necessity consideration in McCloy by reference to what were said to be obvious and compelling legislative alternatives. One was enrolment up to and including polling day, said to be demonstrated by the electoral systems of three Australian States. Another was a reduction of the suspension period by making it a fixed number of days counted back from polling day. These arguments invited the Court to undertake an hypothetical exercise of improved legislative design by showing how such alternatives could work. In so doing, they invited the Court to depart from the borderlands of the judicial power and enter into the realm of the legislature. The McCloy analysis was inapposite in this case.

That there were a range of technological possibilities that might make extension of the rolls up to polling day possible did not make the provisions a ‘burden’ or invalid: ‘The plaintiffs’ premise that the suspension period reflects a burden on the constitutional mandate of popular choice was not made out. The failure of that premise was fatal to the plaintiffs’ attempts to generalise Roach and Rowe in support of their argument.’ (at [42]).

Kiefel J rejected the plaintiffs’ assumption that this case did not materially differ from the circumstances in Roach and Rowe (at [52]ff), and noted that neither case provided support for what Her Honour saw as the inferred ‘essential premise’ of the plaintiffs’ submissions: that the laws will not be valid unless they ensure that the maximum number of people are able to vote (at [51], [58]). Instead, these decisions require there be a substantial reason for disqualification from voting, and that requirement is satisfied if the means adopted are not disproportionate to the legitimate end sought (see [61], and [62]–[65]). Here, within the scheme of the Electoral Act, closing the Rolls ensures there will be few delays in announcing results, and achieves accuracy and certainty in the lists produced: overall, these provisions ‘bear a rational connection to their purpose’, namely, the ‘efficient conduct of an election’ (at 69]). Alternative schemes and technological improvements only showed that there were multiple electoral systems to choose from, and it was not clear that those systems could achieve the same objectives of the Electoral Act or the same certainty achieved by closing the Rolls (see [70]–[73]).

To Gageler J, the central problem with the plaintiffs’ arguments were the range of ‘stylised propositions’ that the plaintiffs contended showed a lack of any ‘substantial reason’ for the enrolment cut-off, and thus an incompatibility with ss 7 and 24 (at [97, [98]). These arguments included that there was a lack of rational connection between the cut-off and the legislative goal of ensuring enrolment prior to voting; the existence of less restrictive means; a viable alternative in the systems in some States; and a lack of ‘adequate balance’ between the administrative benefits and the disadvantage to those cut-off from enrolment (see at [100]). For Gageler J, this method of argument showed the inappropriateness of the use of a ‘structured and prescriptive, and ultimately open-ended, form of proportionality testing’ which His Honour had criticised in McCloy: ‘The plaintiffs’ attempt to shoehorn their argument within it highlights the inappropriateness of attempting to apply such a form of proportionality testing here. What is at best an ill-fitted analytical tool has become the master, and has taken on a life of its own.’: at [101]. In this matter, the Court’s constitutional role precluded entering into these inquiries (at [102]). Gageler J stated, at [104]–[105]:

The impugned provisions do no more than give contemporary expression to a standard incident of the traditional legislative scheme for the orderly conduct of national elections. That is the reason for them, and that reason is substantial. Whether or not cutting off enrolment at a fixed time seven days after the issue of a writ might be regarded as outmoded, that cut-off is not so unfit for the purpose for which it was long ago designed that it can no longer be said to be reasonably appropriate and adapted to serve that purpose. Stricter scrutiny is not warranted, and greater justification is not required. Unlike Roach and Rowe, this is not a case in which provisions impugned have expanded an exclusion from the franchise.

Gageler J concluded by noting that the plaintiffs’ case would have required the Court to engage in electoral reform by compelling the Parliament to maximise the franchise by redesigning its scheme (at [109]). His Honour rejected this ‘agenda’: ‘That is not our system. The plaintiffs’ efforts to expand the franchise would be better directed to the Parliament than to the Court’ (at [110]).

Keane J focused on the broad powers conferred on Parliament by the Constitution to design the electoral system, and rejected the plaintiffs’ overall argument that ss 7 and 24 required that ‘only one judgment about the appropriate period of time’ between issuing writs and closing the rolls was available to Parliament (at [227]). To Keane J, the plaintiffs erred in narrowly focusing on the act of voting as if it were exhaustive of the concept of ‘choice by the people’: this approach obscures the ‘broader aspects of the electoral system’ needed ‘to facilitate that choice and against which the desirability of maximising voting opportunities must be balanced’: ‘ In short, they failed to identify a burden on the constitutional mandate of choice by the people; rather, their case was no more than a complaint that better arrangements might be made to fulfil the mandate’: at [181]. Here, closure of the Rolls before polling day addresses issues of certainty of electors, and facilitating an ‘early and peaceful poll’, efficient scrutineering and certainty in declaring a result, which are all compatible with a choice by the people: at [185]. Further, it would overstep the Court’s judicial power and responsibility to require the executive or legislature to expend additional resources to keep the Roll open until polling day (at [188]–[190]). Keane J also addressed and rejected the plaintiffs’ suggestion that the challenged provisions were not invalid in previous elections (see [193]ff). Turning to proportionality, Keane J held that the provisions were part of an electoral system authorised by a range of provisions in the Constitution and did not create any ‘burden’ on the requirements of ss 7 and 24 that might require a Lange-style proportionality analysis (at [204]ff). His Honour further noted that even if such an analysis were appropriate, the plaintiffs have not shown that their alternatives are the kind of compelling and obvious means to achieve the same outcome (at [211]ff). Finally, Keane J rejected the plaintiffs’ arguments that Rowe was applicable and determinative here because nothing in Rowe cast doubt on the validity of suspension/grace period approach (at [220]): ‘The legislation challenged by the plaintiffs in the present case affords citizens not enrolled at the issue of the writs the very opportunity to enrol which was abrogated by the legislation struck down in Rowe … it is simply an abuse of language to say that those citizens who do not avail themselves of the opportunity to enrol afforded by the grace period have been disqualified from enrolment or from voting.’ (at [225]).

Nettle J held that the restriction was appropriate and adapted to the achievement of the end of a degree of order and certainty within resource constraints and was consistent with the system of representative government required by the Constitution (at [256]). Noting that restrictions on the franchise require a ‘substantial reason’ that in turn is ‘reasonably appropriate and adapted’ to an end consistent or compatible with the constitutionally prescribed system of representative government (see at [244]), and after examining the structure of the Act and the place of the Roll within it (at [246]–[249]), Nettle J held that by requiring enrolment within a time and penalising electors who failed to do so, these provisions were directed to achieving the accuracy of the Roll and allowing sufficient time to ensure that accuracy in the lead up to an election (at [250]). Despite a range of alternative means of doing so, it remained open to the federal Parliament to prefer the order and certainty of the current provisions to those alternatives (at [251]–[254]).

Gordon J held that the provisions were valid because they do not exclude a part of the suffrage, restrict franchise or distort the popular choice, and to the extent that they might be considered to do so, there is a substantial reason for doing so (at [333]). After reviewing the provisions of the Act (at [270]ff), and reviewing the principles in Roach and Rowe (at [292]–[294]), namely that a limitation on universal adult suffrage must be for a substantial reason, Gordon J noted that the ‘structured’ proportionality approach taken in McCloy was inappropriate in the constitutional context of this matter (at [297]). In Her Honour’s view, the McCloy approach, originally applied in the context of the implied freedom of political communication, is inappropriate in considering the constitutional requirements of the electoral framework because the Constitution requires that Parliament positively maintain a legislative scheme for elections, which could be designed in a great variety of ways, as opposed to the limit on legislative power in the implied freedom (see at [300]–[302], illustrated with reference to the ‘necessity’ element in McCloy at [298] and [303]). Turning to the provisions, Gordon J held that there was no restriction on or exclusion from the franchise here: the law did not diminish an existing opportunity to enrol, transfer or vote (at [309]), and arguments from the numbers of people eligible to enrol but who fail to do so are not relevant for resolving the constitutional question of whether the electoral system yields a parliament ‘directly chosen by the people’ (at [311]–[315]). The fundamental flaw in the plaintiffs’ arguments was the mistaken assumption that the Constitution requires Parliament to enact laws to provide for elections that are ‘as expressive of the popular choice as practical considerations properly permit’ (at [316]). A second mistaken assumption was to accord central significance to polling day itself as the day when people ‘choose’ (at [317]–[321]). Finally, even if there were an exclusion from or restriction on the franchise, the current electoral system demonstrates a substantial reason for the challenged provisions: it has a coherent structure aimed at an orderly process for elections, and focusing on the suspension of the rolls, which is only one part of the overall system, is artificial and detracts from considering the whole structure (at [324]ff). The Rolls are a central component of the overall system, and their closure and the suspension of any further changes is necessary for later steps in the process (at [329]ff).

High Court Judgment [2016] HCA 36 5 September 2016
Result Application dismissed
High Court Documents Murphy
Full Court Hearings [2016] HCATrans 111 12 May 2016
[2016] HCATrans 108 11 May 2016
Directions Hearings [2016] HCATrans 72 24 March 2016

[2016] HCATrans 68 18 March 2016

[2016] HCATrans 66 15 March 2016

[2016] HCATrans 37 16 February 2016

ORDER

The questions stated by the parties in the amended special case dated 1 April 2016, as amended by the addendum to the amended special case dated 11 May 2016, and referred for consideration by the Full Court be answered as follows:

Question 1

Do one or both of the first plaintiff and the second plaintiff have standing to seek the relief sought in paragraphs 1, 2, 3 and/or 4 of the Further Amended Application for an Order to Show Cause?

Answer

The second plaintiff has standing and it is otherwise unnecessary to answer the question with respect to the first plaintiff.

Question 2

Are any or all of sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5) and 118(5) of the Commonwealth Electoral Act 1918 (Cth) contrary to ss 7 and 24 of the Constitution and therefore invalid?

Answer

No.

Question 3

If the answer to Question 2 in relation to a section is yes, do sections 152(1)(a) and 155 of the Act have the same or substantially the same operation or effect as the impugned provisions or any of them and, if so, are sections 152(1)(a) and 155 invalid and of no effect?

Answer

The question does not arise.

Question 4

If the answer to Question 2 or Question 3 in relation to a section is yes, is that section, or are those sections, severable from the rest of the Act?

Answer

The question does not arise.

Question 5

What if any relief should be granted?

Answer

None.

Question 6

Who should pay the costs of the special case?

Answer

The first plaintiff.

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About Martin Clark

Martin Clark is an PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor in legal theory, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

4 thoughts on “Murphy v Electoral Commissioner

  1. As I understand it, the Plaintiffs argued for considerably more than a 7 day period — the 7 day period is the current, post-Rowe system that they were challenging. The Plaintiffs argued that closing the electoral rolls 7 days after the issue of the writs is too short and that enrollments should be extended up to polling day (or alternatively, counted back from polling day, to a day closer than 7 days after the writs).

    • It was also the Pre-Rowe system. That is, following Rowe, the system just reverted to what it had been prior to the amendments which were invalidated in Rowe.

    • That’s exactly right re: arguing for more than a 7-day period – that original phrasing was based on the material in the written submissions which indicated 7 days was too short but I forgot to change it to ‘up to polling day’. Have amended now.

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