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.
An excellent win that will raise Getup’s profile and credibility, and put a bit more punch behind their other work -such as the anti-Abbott adverts. Great to see online advocacy really starting to make a difference.
William – so much for my advice… Yes the law allows the AEC to leave certifying lists of electors till the day before polling. But it is just too efficient. Or rather, since there is a fair bit of pre-polling already happening, they in practice have to certify early to assist with pre-polling.
Not sure about an analogy between Peter B’s work on traditional provisional votes becoming hard to come by because of extra i.d. requirements and these ‘late’ enrolments. These aren’t people who dropped off the roll due to official error (the traditional category for claiming a provisional vote). These are people known to the AEC, and if nothing else the AEC can contact them and make clear their new rights and obligations.
It’s not entirely clear what the guesstimate of about ‘100 000’ means. The agreed facts in the case seemed to suggest it covered both new enrollees and change of addresses, who had missed the cut off but were within the one week period.
yes, of course WB.
🙂
How will this play out in any challenge or close result as was the case in McEwan?
Preliminary review of the registered voting cards in Victoria indicates the Greens will win a Senate seat in Victoria. The DLP, One Nation and Family First all flowing to the Liberal/NP which will hold on to 3 Seats with a surplus. The Liberal and ALP also flow to the Greens. Under the current system of calculating the surplus value based on the number of ballot papers as opposed to the value of the vote will also provide an advantage to the Greens. The ALP will only win 2 seats and fall short of a third.
Looking at section 102, but of course not having yet seen the Full Court’s reasons, I think it may be worthwhile for any voter who did not apply for enrolment at all because they had missed the 8pm day of writs deadline to claim a provisional vote. Why allow only those who applied to enrol within 7 days after writs to vote? What about those who did not apply because they believed Howard’s amendment was valid and prevented them from applying?
I am amused and bemused by an ABC online news report today which quotes shadow special minister of state Senator Michael Ronaldson saying that he is pleased more people will be able to enrol to vote. “We won’t be doing anything to overturn the High Court decision” Ummmm. How would he overturn a full court decision? Turn back the clock to the days of the Privy Council maybe? Please wake up ABC! Such fatuous nonsense is reported without question apparently.
Paul that’s the unknown of the case: how many gave up trying to enrol. Catch-22 in your reading of section 102: AEC can only act on claims it received in time.
Here’s my take on the case in Inside Story: http://inside.org.au/court-by-surprise-the-high-court-upholds-voting-rights/
This is the press release from the High Court website.
http://www.hcourt.gov.au/media/rowe.pdf
Transcipts of the case are here:
http://www.austlii.edu.au/au/other/HCATrans/2010/
Graeme thank you for pointing me to your excellent article. This could get very interesting.
May I please add my congratulations to Get Up! and their success and especially fellow Adelaide elector, Shannen Rowe, who at only 18 had the gumption to stand up and do something to remove this cynical law and improve our country’s democracy.
Queensland is also looking like delivering 3 Lib/NP, 2 ALP and 1 GRN Senator. The 2007 Queensland Senate was controversial in that the Greens should have won the sixth spot but failed to do so because of a distortion in the way the AEC distributes “bottom of the deck” segmented votes from excluded candidates. Looks like this time they will be in a winning position thanks to Lib/NP preferences.
William there are Declaration votes. You sign a declaration and you vote is placed in an envelope and subsequently checked before being admitted to the count. A bot like a postal or absentee vote. Hopefully the AEC can and will provide a full account of all options that have been issued and received back on election night. It should also be possible for the AEC to also provide an estimate on the number of postal votes registered. Full publication of this data will ensure that votes do not go missing or mysterious bundle of votes added into the system during the count as was the case in the 2006 Victorian State Election. The AEC should be able to produce a reconciliation report based on voting centre polling returns. Ideally this would also be published on the AEC web site.
You might like to publish daily states on the number of prepolling and postal votes issued and returned as the election draws near. This will show how active the parties have been throughout the campaign. By monitoring the return rate you can gain some indication and insight into the likely result.
sorry I meant daily stats…
The REAC is publishing set by seat stats on the postal vptes isued but have not yet published the states on postal votes returned or any stats in early prepolling voting rates or overseas missions. These should be made available…. hopefully they will.
http://aec.gov.au/election/downloads.htm
It is important to monitor the return rate as well as the number issued.