Chosen by the people: High Court dismisses challenge to suspension period of Electoral Roll

In Murphy v Electoral Commissioner [2016] HCA 36, the High Court dismissed the plaintiffs’ challenge to provisions of the Commonwealth Electoral Act 1918 (Cth) (the Act) which prohibit certain amendments to the Electoral Rolls beyond the legislated time for the close of the Rolls, being seven days after the issue of the writs for elections (the suspension period).  The practical effect of the provisions is that a person who is not enrolled to vote by the commencement of the suspension period will not be able to vote.  The Court held that this was not inconsistent with the requirement of ss 7 and 24 of the Constitution that senators and members be “directly chosen by the people”.

The plaintiffs relied on Roach v Electoral Commissioner (2007) 233 CLR 162 (Roach) and Rowe v Electoral Commissioner (2010) 243 CLR 1 (Rowe) for the principle that a law which disqualifies a person from exercising the popular choice mandated by the Constitution is invalid unless the disqualification is for a substantial reason.  Invoking the test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and incorporating the structured proportionality analysis from McCloy v New South Wales [2015] HCA 34, the plaintiffs argued that disqualification will be for a substantial reason only if it is “reasonably appropriate and adapted” to serve an end which is consistent or compatible with the constitutionally mandated system of representative government.  The plaintiffs argued that the suspension period could not be said to be reasonably appropriate and adapted because there is no reason why a person should not be permitted to enrol up to and including polling day, or why there could not be a calculation of a suspension period back from polling day rather than forward from the issue of the writs.

The Court answered the questions in the special case adversely to the plaintiffs at the conclusion of the oral hearing and subsequently handed down six separate reasons for judgment.

In their joint judgment, French CJ and Bell J characterised the plaintiffs’ claim as a complaint that the legislation did not go far enough in providing opportunities for enrolment.  Their Honours noted that the suspension period is a design feature of the Act, which has existed for a long time and for legitimate reasons and found that the existence of alternative possibilities did not support a characterisation of the design limits of the Act as a “burden” upon the constitutional mandate of popular choice.  The impugned provisions did not become invalid merely because it is possible to identify alternative measures extending opportunities for enrolment.  That approach, their Honours stated, would allow a court to “pull the constitutional rug from under a valid legislative scheme upon the court’s judgment of the feasibility of alternative arrangements” thus inviting the Court to depart from the borderlands of judicial power and enter into the realm of the legislature.

Kiefel J described the plaintiffs’ case as being based on the incorrect assumption that the circumstances of their case were not materially different from the circumstances in Roach and Rowe.  Her Honour undertook an analysis of the scheme created by the Act, and found that there were practical reasons for the suspension period.  Those reasons included enabling steps to facilitate the efficient conduct of an election, ensuring that there will be few delays in declaring election results and achieving accuracy and certainty in the lists which are produced when polling takes place.  Her Honour found that it could not be accepted that the alternative means identified by the plaintiffs were equally practicable to the scheme created by the Act because it was not demonstrated that they were equally capable of achieving the same objectives or would be as efficient or as certain as the scheme under the Act.

Maintaining his reservations about the proportionality analysis established in McCloy, Gageler J held that there was a substantial reason for the impugned provisions as they gave contemporary expression to a standard incident of the traditional legislative scheme for the orderly conduct of national elections. While the suspension period may be regarded as outmoded, his Honour found that it is not so unfit for the purpose for which it was designed that it could not be said to be reasonably appropriate and adapted.  His Honour also noted that the plaintiffs’ case was different from the circumstances in Roach and Rowe because those cases dealt with novel provisions introduced into the Act.  His Honour acknowledged what he described as the plaintiffs’ “agenda” to have the Court engage in a process of electoral reform by compelling Parliament to maximise the franchise by redesigning the legislative scheme and stated that the plaintiffs’ efforts were probably better directed to Parliament.

Keane J found that the plaintiffs’ argument erred by focusing narrowly on the act of voting as if it exhausted the content of the concept of popular choice.  In so doing, the plaintiffs failed to identify a burden on the constitutional mandate.  Rather their case was no more than a complaint that better arrangements might be made.  His Honour expressed doubt that the Lange test should be applied because the plaintiffs’ case did not involve any implied constitutional freedom but rather express provisions of the Constitution.  Keane J nonetheless found that, even if a Lange-style analysis were applied, the alternatives advanced by the plaintiffs were not shown to be the kind of compelling and obvious alternatives to achieving the same outcome as is achieved by the Act.  His Honour held that the proposition that only one judgment about the appropriate period of time between the issue of the writs and the closing of the Roll is available to the Parliament was inconsistent with the Constitution’s broad conferral of power on the Parliament to create the system whereby the choice of the people is to be made.

Nettle J observed that the Constitution gives Parliament considerable discretion to select the means by which to regulate elections and that it is necessary for the integrity of the system established by Parliament that the Roll be maintained as accurately as possible.  His Honour held that the impugned provisions, by requiring electors to enrol within the defined time, penalising electors who failed to comply with their obligations and preventing additions or amendments to the Roll during the suspension period, are directed to achieving the degree of order and certainty which enhances the democratic process consistently with the system of representative government prescribed by the Constitution.  While not overlooking the availability of alternative means, Nettle J noted that they raised questions of policy in which the Court had no role to play.

Gordon J expressed concern about the appropriateness of applying the proportionality test in McCloy, noting that the immediate constitutional context was different from that involving implied freedoms and that the rigidity of the ‘necessity’ stage of the test in McCloy created too great a risk of an intrusion by the judicial branch on the legislative function.  Her Honour held that the impugned provisions did not create an exclusion from or restriction on the constitutional mandate.  Her Honour went on to state that even if there were such exclusion or restriction the features of the electoral system chosen by the legislature demonstrates that there is a substantial reason for the impugned provisions, those provisions leading to a coherent and structured electoral system.  Her Honour found that none of the alternatives identified by the plaintiffs could be considered ‘compelling’ when their implementation would require substantial amendment to the legislative scheme and raise questions about the allocation of financial resources.

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