A Win For Human Rights In The High Court

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Phil Lynch, Executive Director of the HRLRC reports

The Human Rights Law Resource Centre and GetUp! issued a constitutional challenge to amendments to the electoral laws in July 2010. The subsequent High Court decision  restored the right to vote to over 100,000 Australians.

In an historic decision, the High Court has struck down legislation which resulted in the early close of the electoral rolls and denied over 100,000 Australians the right to vote.

The decision is a landmark victory for representative democracy, political participation and accountable government.

The case was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006. The Amendment Act resulted in 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.

According to the AEC, historically, the calling of an election has resulted in significant numbers of persons enrolling or changing enrolment during the 7 day period, particularly young Australians.  The 7 day period enabled the AEC to advertise and promote enrolment and target particular groups with information campaigns, including Indigenous Australians and people experiencing homelessness.  At the 2004 Federal Election, approximately 423,000 people enrolled, re-enrolled or updated enrolment during the 7 day period.

It is crucial to representative democracy and accountable government that all people have the right, and the practical opportunity, to vote.   The early close of the rolls, which occurred thanks to Howard-era amendments, denied over 100,000 people the opportunity and right to vote.   The legislation disproportionately disenfranchised Indigenous Australians, young people, people experiencing homelessness and people in remote communities. In so doing, the legislation diminished our democracy.

This decision, in ordering that the rolls stay open for at least 7 days to enable people to enrol or update their enrolment, restores and promotes the fundamental human rights to vote and, in so doing, enhances democracy and promotes representative government.

The challenge to the early close of the rolls was jointly conceived and coordinated by the Human Rights Law Resource Centre and GetUp!.  The Human Rights Law Resource Centre is a leading national human rights advocacy organization which, in 2007, established constitutional protection of the right to vote in the landmark High Court case of Roach v The Commonwealth.

The matter was run pro bono by an outstanding legal team comprising Ron Merkel QC, Kristen Walker, Fiona Forsyth and Neil McAteer of Counsel, together with Mallesons Stephen Jaques.

You can read the Court’s order here.


More Than Luckis a collection of ideas for citizens who want real change edited by Mark Davis and CPD Executive Director Miriam Lyons. A to-do list for politicians looking to base public policies on the kind of future Australians really want, More Than Luckshows what’s needed to share this country’s good luck amongst all Australians – now and in the future. Click here to find out more. Like what you’ve read? Donate to help make good ideas matter.

  • I. Gillard

    The victory for representative democracy I want is for Australia’s Parliaments to put their reforms to the people for review. In a true commonwealth the people are the masters not the slaves.

    The one thing that lazy people do is leave choices to others to make. Parliament has a duty to lead, but referendums are required for a true commonwealth to evolve. It is time that the common people accepted their duty in this nation.

    I am not calling for people to take to the streets like in Egypt. I am calling for the referral of power by the states to be endorsed by the people after a review period. I believe that the two rights that the people should review are the right to make laws about income taxation and corporations. Under the constitution these powers are reserved for the states, and not Federal Parliament.

    Income taxation power was given over by the states during war. Corporation law evolved from States working together. As a commonwealth these reforms should be the duty of the common man and not the elected citizens alone.

    The structure of our nation should evolve from the choice of the people and not the power elites. Many of our problems can only be solved by the people. The Australian Constitution is not a century old document, but a work of art that evolves with the nation. It is time we took on our duty to keep it up to date, and to be suitable for a nation in the 21st century.