Promoting and Protecting the Right to Vote

Last week GetUp! and the Human Rights Law Resource centre announced a proposed constitutional action to protect voting rights. Phil Lynch explains the legal basis of the challenge

On 23 July 2010, the Human Rights Law Resource Centre and GetUp! announced a proposed action in the High Court of Australia to promote and protect voting rights for disadvantaged groups.

The case is 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.

One of the results of the 2006 amendments is that the electoral rolls for new or re-enrolling voters close the day the electoral writ is issued, with an extra two days allowed for voters updating their enrolment details.  Previously, the electoral rolls remained open for seven days after the issue of the writ.

According to the AEC, when elections have been called in the past, significant numbers of enrolled or changed their enrolment during this seven day period — particularly young Australians.  The extra time enabled the AEC to advertise and promote enrolment and to 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.

The stated purpose of the 2006 amendments was to enhance the integrity of the electoral roll.  According to the AEC, however, early close of the rolls does ‘not improve the accuracy of the rolls for an election’ but rather makes them ‘less accurate, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received’.  An Australian National Audit Office performance audit of the roll in 2001/02 found that it was of ‘high integrity’ and that there was no evidence of widespread or organised fraud that needed to be addressed by closing the rolls early.

Both the Parliamentary Joint Standing Committee on Elections (2001, 2005) and the Senate Finance and Public Administration Committee (2006) have consistently found that the voters most adversely affected by the early close of the rolls are young Australians, and those with limited access to information, knowledge of the electoral system or means of enrolment, including people experiencing homelessness, Indigenous Australians, people with disability and Australians from non-English speaking backgrounds.

By contrast, Article 25 of the International Covenant on Civil and Political Rights — which has been ratified by Australia — provides that every citizen has the right and should have the opportunity, without discrimination or any unreasonable restrictions, to vote.  Article 25 has been interpreted by the UN Human Rights Committee to provide that ‘States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed.’ (HRC, General Comment No 25).

Pursuant to the principles established by the High Court in Roach v AEC in 2007, the plaintiffs, the Human Rights Law Resource Centre and GetUp!, will argue that the early close of the rolls is a limitation or impairment of the right to vote, that the purpose of the impairment is not demonstrably justified, and that the means of achieving that purpose are not reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government.

The plaintiffs will also argue that the early close of the roll and the consequent disenfranchisement of otherwise eligible voters, is incompatible with the constitutional requirement (ss 7 and 24) that the Houses of Parliament be ‘directly chosen by the people’.