In a stunning repudiation of the Howard government’s electoral law reforms of 2006, the High Court has today upheld by majority a GetUp!-sponsored legal challenge against the closure of the electoral roll on the day the writs for the election were issued. Until 2006 this routinely occurred seven days later, which allowed voters time to enrol or amend existing enrolments, and the Australian Electoral Commission time to advertise the urgency of doing so. The current government introduced legislation to reinstate the seven-day period, but it was still before parliament when the election was called. The ruling will allow the 100,000 prospective voters who did in fact enrol in the seven day period after the issue of the writs to vote at the August 21 election, which presumably falls far short of the number that would have enrolled if the value of doing so had been known in advance. The High Court has yet to publish its reasons, but the GetUp! case sought to build on an earlier ruling that invalidated another aspect of the 2006 act which denied the right to vote to all prisoners. This established a test whereby restrictions on the exercise of the vote had to involve a proportionate response to a legitimate problem. It appears the court has agreed that the amendment lacked the requisite foundation in evidence to meet such a test, the AEC having consistently maintained that a later closure of the rolls posed no threat to the integrity of the roll, as had been claimed by the Howard government. The AEC now has the onerous task of informing the 100,000 affected voters that they are now eligible to vote.
UPDATE: The Australian Electoral Commission advises that since the voter lists for use on August 21 have already been printed, the affected voters will have to lodge declaration votes. I take this to mean what are classified as provisional votes, where prospective voters who present at the polling booth and find they are not listed can lodge a vote that is withheld from the count unless and until it is established that they ought to have been on the roll. Unlike other voters, provisional voters are required to provide identification. Prior to 2007 the success rate for such votes being admitted was about 50 per cent, which in most cases involved voters who had moved within the electorate and been removed from the roll when it was found they were not at their listed address. However, the 2006 act was to prevent such votes being admitted to the count which, as Peter Brent calculates, cut the admission rate to 14 per cent. This is going off not-quite-final figures of 24,212 out of 168,767 provisional votes received. Presumably both figures will be quite a lot higher this year.
UPDATE 2: As well as being delightfully informative in this post’s comments thread, electoral law expert Graeme Orr gives the best available overview of the decision in Inside Story.