News: Your Right to be on the Electoral Roll and Rowe’s Case

By Professor Miranda Stewart

The electoral roll closes by 8pm today, Monday 12 August 2013, seven days after the election writs were issued. If you have not registered by this time, you will not be eligible to vote in the forthcoming election on 7 September.

It seems appropriate to commemorate today the victory in Rowe’s Case [2010] HCA 46 in which the High Court struck down as unconstitutional, a law by which the electoral roll was closed on the day of issue of the electoral writ (usually, the day that the election is announced). The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), passed under the Howard government, had amended the Electoral Act 1918 (Cth), resulting 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 victory reinstated the previous deadline for closure of the roll, and the High Court heard the case urgently and issued its decision within a record time, to enable an estimated 100,000 voters who were not on the roll, including many young people voting for the first time, to register to vote in the 2010 election. The plaintiff, Shannen Rowe, had turned 18 just a month before the 2010 election was called by then-Prime Minister Julia Gillard. Of course, she had not been old enough to vote in any previous election.

In his judgment in Rowe, Chief Justice French observed that Australia’s Constitution requires members of the Parliament to be ‘directly chosen by the people’ – which he described as ‘constitutional bedrock’. The Constitution, as Justice Isaacs had said more than century ago today in Smith v Oldham [1912] HCA 61, reinforces the principle of democracy by recognising that:

The vote of every elector is a matter of concern to the whole Commonwealth.

Chief Justice French and Justices Gummow, Bell and Crennan in the High Court held that the 2006 amendment removed a ‘statutory period of grace’ of seven days to get onto the electoral roll, which had existed for decades previously. This change was not justified by administrative or convenience reasons and was too heavy a price on the Constitutional right to vote, hence it was invalid. We should not forget, either, that the High Court was divided and the victory was 4:3. Three High Court judges disagreed with the result: Justices Hayne, Heydon and Kiefel.

Justices Gummow and Bell observed (at [158]) that in Australia’s system of compulsory voting, there will always be some gaps in the electoral roll, in which people will be prompted to fix up their registration once an election is called, for quite a number of people:

That many persons are stimulated to claim enrolment or transfer only upon awareness of the start of the particular electoral cycle is a phenomenon that was well apparent before the enactment of the 2006 Act. And, after all, there are estimated to be some 100,000 persons in the present position of the plaintiffs.

Justice Crennan observed (at [347]) that:

Whilst the Constitution does not subscribe to any political philosophy, or theory of government, ‘choice by the people’ of parliamentary representatives is a constitutional notion signifying individual citizens having a share in political power through a democratic franchise.

Her Honour discussed the difference between an oligarchic government and a democratic representative government, referring to the words of Justice Mason in McKinley’s Case [1975] HCA 53. Justice Crennan concluded that the restrictive provisions in the 2006 law were not shown to be ‘necessary or appropriate’, and would disentitle a significant number of electors from their constitutional right to vote — so must be struck down.

For a comment at the time on the victory in the Rowe case, which was instigated by Getup! and run pro bono by a team of barristers, see the Human Rights Law Centre post here.