Rowe & Anor v Electoral Commissioner & Anor [2010] HCATrans 204 (4 August 2010)

Last Updated: 18 November 2010

[2010] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M101 of 2010

B e t w e e n -

SHANNEN ALYCE ROWE

First Plaintiff

DOUGLAS STEWART THOMPSON

Second Plaintiff

and

ELECTORAL COMMISSIONER

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 AUGUST 2010, AT 10.15 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MS K.L. WALKER, MS F.K. FORSYTH and MR N. McATEER, for the plaintiffs. (instructed by Mallesons Stephen Jaques)

MR G.T. JOHNSON: May it please, your Honours, I appear for the first defendant. (instructed by Australian Government Solicitor)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court please, I appear with MR G.R. KENNETT and MR D.F. O'LEARY for the second defendant. (instructed by Australian Government Solicitor)

MR R.M. MITCHELL, SC: May it please the Court, with my learned friend, MR C.S. BYDDER, I appear for the Attorney-General for Western Australia intervening in support of the second defendant. (instructed by State Solicitor’s Office)

FRENCH CJ: Mr Merkel. Mr Merkel, before you begin, having regard to the time constraints and the estimates, which I think you indicated to Justice Hayne during the directions hearing leading up to the referral of this matter, we would expect you to have concluded your submissions by no later than 3.00 pm this afternoon.

MR MERKEL: Yes, your Honour, thank you.

FRENCH CJ: Yes, all right. The other matter which I think we need to just clarify at this stage is the content of the agreement in the statement of agreed facts between the parties, particularly so far as it relates to paragraphs 25 to 29 inclusive. Those paragraphs refer to various reports and submissions from the Australian Electoral Commission, Human Rights and Equal Opportunity Commission and I think the Australian National Audit Office. There are, I think, in your submissions, particularly at paragraphs 19, 29 to 32, 33, 34 and 35, references to statements made in the various reports and submissions referred to in the agreed statement of facts. I have not detected any objection to reference to those statements. Can we take it that those statements form part of the corpus of the agreed facts?

MR MERKEL: That is my understanding, your Honour.

FRENCH CJ: Thirdly, there is an affidavit – a second affidavit, I think, of Mr Cooper of 30th July, which was the subject of objection. Do you actually intend to read that affidavit?

MR MERKEL: Your Honour, the objection only relates to certain polling material and it is ultimately an objection on grounds of relevance and what we would propose, your Honour, is we take the Court briefly to why we rely on it and the question of relevance can be dealt with either at that point or at some later point.

FRENCH CJ: Yes. It is a bit elusive at the moment. I am not sure if it is - - -

MR MERKEL: I do not want to jump ahead of it, your Honour, but it does have a relevance to certain submissions about the political nature of the decision to issue writs and the political factors that can motivate that decision. But it is not intended, your Honour, to go any further that what is the publicly available data. It is not suggested that that necessarily reflects a true position at any particular time. It is obviously changing.

FRENCH CJ: Yes, all right. I will hear from the Solicitor in relation to the statement of agreed facts.

MR GAGELER: Your Honour, we accept the statements made in the various reports for what they are, that is, the statements of the various bodies made in those reports.

HEYDON J: What is the relevance of that – the mere fact that they were made. What is the relevance of that mere fact?

MR GAGELER: They are nothing more than the expressions of views of bodies charged with statutory responsibilities, your Honour.

HEYDON J: But what is the relevance of the views of those bodies charged with statutory responsibilities?

MR GAGELER: We fail to see the relevance, but we do not object to that material being put before the Court. In fact, we have agreed to that material being put before the Court.

FRENCH CJ: But they are relied upon in the submissions made on behalf of the plaintiffs on the basis that they are correct, either as to statements of fact of a statistical character, alternatively as to statements of predictive opinion or simple opinion, for example, the report from the Australian National Audit Office, so how are we to receive or treat those, as evidence of the facts and as to the correctness of the opinions?

MR GAGELER: No, simply as evidence of publicly available material, material in the public domain as at the date of the enactment of the legislation. It is nothing more than the context in which the 2006

Amendment Act was enacted – part of that context, nothing more. They are of extremely little weight, in our submission.

FRENCH CJ: Your position is, if I understand it correctly, that the fact of the opinions being stated or the factual statements being made by these prospective bodies, either in reports or submissions, is at best of some contextual significance.

MR GAGELER: Correct, and nothing more. Your Honours, so far as the opinion poll results in the exhibits to the affidavit at pages 45 to 59 of the application book are concerned, our position is that they cannot be probative of underlying voter intentions and that the results of opinion polls, as reported on particular days, are totally irrelevant to constitutional validity.

MR MERKEL: Your Honour, can I just indicate that there may be some slight misunderstanding between us. My understanding of the way in which the various reports are put forward is that if the reports contain evidence of facts, say, for example, if a report we have handed up to your Honours which has a graph of participation rates and age groups and it is based on statistics, we have never had it suggested to us by our learned friend and I do not think he is contending, but it sounded like he might be, that they are not evidence of the underlying facts.

So that this matter has proceeded on the basis that these reports by the National Audit Office or the Australian Electoral Commission, insofar as they contain facts, are agreed facts and there is no dispute about those underlying facts, insofar as they are opinions, of course, they are opinions and they provide a context, but it is not - - -

GUMMOW J: They tell us a number of matters at one level. How many are on the roll at particular elections, how many voted, how many informal votes there were. I am not sure there is any contest about that from the Solicitor, I do not know.

MR MERKEL: All we understand is that all the facts stated are not challenged as facts. Opinions stated are opinions held, but they certainly go further than just a context. There is no suggestion in any of our learned friend’s submissions in response to our submissions that there is any challenge to the factual statements that we have put forward and relied upon. It may be that it is a storm in a teacup, but it is our understanding that that is how these documents were put forward.

FRENCH CJ: You have a lot of statistical statements in the statement of agreed facts which are plainly agreed facts. The problem is the agreement is a bit opaque when it comes to the reports.

MR MERKEL: Except for this, your Honour. It had proceeded on the basis that we initially indicated what we wished to have in on the basis of facts and our learned friends wished to have the whole context of those facts in. Thus the application book grew with a lot of material that is not being referred to either party. But it is not our understanding that our learned friend has any issue with any of the factual statements or matters upon which we rely which we have identified in our submissions. That is our understanding of the Commonwealth’s position on this. As a result of that, what happened is matters were taken out of the proposed agreed facts because they were in documents and the documents were put forward because the Commonwealth wanted a context which we could not have any issue with.

BELL J: Apart from the statistical material, for example, you rely on the material in one of the reports relating to the continuous roll update mechanism now available.

MR MERKEL: Yes, your Honour. It has never been suggested to us that the statements in the documents such as the methodology used, the way in which roll-up dates are carried out, names removed - they are all interconnected. It is part of a process where there is no fact in dispute in this case at all that I am aware of, nor could there be any fact in dispute.

FRENCH CJ: Yes, all right, Mr Merkel. So far as the affidavit is concerned we will hear you as to relevance of that in due course.

MR MERKEL: Thank you, your Honours. We have handed up to your Honours the index to our oral submissions and also a further document which is the Electoral Commission’s submission to the parliamentary committee in January of this year which is the latest update on some figures that have been referred to in the reports.

HAYNE J: Is this an agreed fact, an agreed document? What is it, Mr Merkel?

MR MERKEL: It is in the same position as the other submissions of the AEC. We say it contains factual material of the kind I have just been referring to and we would understand there is no dispute as to any of the facts in it and there may be dispute as to the opinions.

GUMMOW J: Are you seeking to add this to the agreed fact material?

MR MERKEL: Yes, your Honour, to treat it in the same category as the AEC submissions that are part of the application book. I may have some

discussion about this with my learned friend at the adjournment to make sure there is no misunderstanding.

FRENCH CJ: Has there not been discussion before?

MR MERKEL: Yes, your Honour, and I had understood that this matter was proceeding on the basis that I had put to the Court.

HAYNE J: Yes. I had understood this matter was proceeding on the basis of agreed facts, Mr Merkel, which is what you told me would happen at the directions hearing and now we have provided still further material. Be that as it may.

MR MERKEL: The document we have handed up to your Honour is the most recent update of other material that makes earlier material redundant because it is updated as at January of this year, your Honour.

FRENCH CJ: You are not able to tell us right now that this is a document which you have shown to the other side and which they accept should be received by the Court?

MR MERKEL: Yes. I understand discussions between solicitors had agreed that this document was to be handed up and accepted, your Honour, on the same basis as any other AEC document we have relied on.

FRENCH CJ: Perhaps we should just clarify that. I think it is rather unsatisfactory to have material handed up to us which is said to form part of the factual basis for your case without it being crystal clear that it is accepted and in what way it is accepted by the other parties.

MR GAGELER: Can I put this in context, your Honour. If your Honours look to the plaintiff’s outline of submissions, for example, at paragraph 30 and paragraph 31 what you will see, for what its worth, is that the plaintiffs seek to put forward as part of their case the expression of views by the AEC and other bodies from time to time. They seek to make something of that - - -

FRENCH CJ: These are the predictive opinions.

MR GAGELER: Yes. We wanted the context of those views, if they were to be referred to at all. It is for that reason that one finds in paragraphs 25 and following of the agreed statement of facts references to reports and submissions, that is, I am looking at pages 94 through to 96. The only agreement between the parties is that those were reports and submissions as described in which certain views were expressed – nothing more.

So far as statistical or factual information is concerned, we were quite careful for that to be set out in the earlier part of the agreed statement of facts from paragraphs 3 through to 24. If our learned friends want some further statistical or factual information from the reports or submissions referred to in paragraphs 25 and following all I can say at the moment is that that has not been identified and it is not the subject of agreement. So far as the further document is concerned, for what it is worth, it is nothing more than a further submission, a further expression of views, dated January 2010 and could not be relevant to any issue in the proceeding. If the Court pleases.

HEYDON J: So you oppose its reception?

MR GAGELER: We do.

MR MERKEL: Your Honour, I think there may have been a slight misunderstanding between myself and my learned friend and if we can possibly proceed and have discussions at lunchtime to - - -

FRENCH CJ: Well, I do not think that is a satisfactory basis on which to proceed, Mr Merkel. At the moment, speaking for myself, on the face of it the agreed facts, so far as they relate to the reports and submissions, express an agreement that does not go beyond agreement as to the fact that these reports were made and these submissions made by the bodies that made them. So far as I read the agreed statement of facts, it does not extend to an agreement as to the correctness of anything, be it factual or by way of opinion, that is stated in those reports or submissions. But, I think, perhaps we might need to consider this briefly outside. So, is there anything further you want to say in response to that?

MR MERKEL: No. If I can take that opportunity to have some words with my learned friend at the same time, then I will come - - -

GUMMOW J: If you want to agree, for example, looking at this document you handed up, if you both want to agree in terms of paragraph 2.13 as to the number of electors on the roll at particular dates, if that is not already agreed in the statement of agreed facts, that is one thing. Do you see what I mean?

MR MERKEL: Yes, your Honour.

GUMMOW J: It is another thing to accept some argumentative – perhaps that is not quite the right word, but this other evaluative material, which this document you have handed up seems to contain. It is a question of you taking the opportunity you have now been given to sort yourselves out.

MR MERKEL: Your Honour, my understanding is that any statement of fact in documents - statistical facts, or as her Honour Justice Bell put it to me, the continuous roll update procedures employed within the Australian Electoral Commission are taken as facts. Anything that is taken as an evaluative judgment is an opinion. It does not prove the fact of the evaluation. That is how we have understood it.

FRENCH CJ: That is precisely the sort of question that has to be addressed in a statement of agreed facts. It should not be left for us to work out on the threshold of argument.

MR MERKEL: I understand that, your Honour, and there had been a misunderstanding as to what was agreed and I will seek to clarify that if I may, your Honour.

FRENCH CJ: The Court will adjourn briefly.

AT 10.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.12 AM:

FRENCH CJ: Mr Merkel, I take it that there has been no further advance since we adjourned?

MR MERKEL: I think, your Honour, there has been a misunderstanding. I have had words with my learned friend and it did appear that if we had a little time we could identify the facts that we say we would expect would be agreed to because they are not evaluative. What is anticipated is, if the facts that we thought were not in issue, such as statistical information and undoubted factual information without any evaluative aspect to it, that we rely upon or agreed, and the other aspect is my learned friend, I understand, accepts that this was the information that was placed before Parliament and which Parliament was entitled to act by the Electoral Commission and the Australian National Audit Office, that that should enable us to proceed.

There are not that many factual issues that we would anticipate would give rise to that problem, but there are certain issues, your Honour, that we say, from brief discussions I have had with my learned friend, I would expect there would be no disagreement on. I think his concern was

reliance on the material in a broader sense or in the abstract. That is what I would understand would be the situation, your Honour.

FRENCH CJ: Yes. I think, Mr Merkel, the position of the Court is that so far as paragraphs 25 to 29 of the agreed statement of facts is concerned and the annexures referred to in those paragraphs are concerned, we would require that if you intend to rely upon any element of any of those annexures that is not already an agreed fact in another part of the document, you should specifically identify it in the course of your submissions and we will deal with it at the time in relation to its relevance, and that goes for all parties. Mr Solicitor, so far as paragraph 9 is concerned in the agreed statement of facts, I think your submissions make some reference to those annexures A to K. How precisely do you seek to use those annexures?

MR GAGELER: In the way identified in the opening words of paragraph 9, that is, they should be taken by agreement to summarise activities undertaken by the AEC in relation to electoral roll management.

HAYNE J: That is, it is an agreed fact that what is in those reports is what AEC did during the year under report.

MR GAGELER: Yes. Your Honours, we were quite precise in the way in which we sought to formulate these agreed facts. That is why paragraph 9 is introduced as it is as distinct, for example, from paragraph 25 or paragraph 26. So far as statistics were concerned, let me just say this. While there may be not much disagreement about precise numbers that might be stated in some of the reports referred to in paragraphs 25 and following, much depends on the context, that much depends on the underlying data, and it is for that reason, your Honours, that we have been very careful again in the formulation of the statistics that we have presented by agreement in paragraphs 11 through to 23 to ensure that the way in which those numbers are presented meets the requirements of both parties.

FRENCH CJ: Thank you, Mr Solicitor.

MR MERKEL: If the Court pleases. The issue in the present case relates to the validity of sections 102(4), 102(4AA) and 155. The question, relying on the principles in Roach, is whether they go beyond what is reasonably appropriate and adapted or proportionate to the maintenance of the constitutionally prescribed system of representative government. It is common ground between the parties that the two questions which we have set out in paragraph 51 of our submissions are the questions to be answered in the present case and that Roach requires those two questions to be considered.

Could I go straight away to the situation of the two plaintiffs. The first plaintiff’s situation – that is Shannen Rowe – is dealt with at paragraphs 22 and 23 of our submissions. She had endeavoured to enrol before the closure for new enrolments on Monday, had her time taken up and did not make the deadline and eventually asked her mother to do so on the Friday, so that within the seven-day period prior to the 2006 amendment she would have been enrolled and under the amendment she was not able to be enrolled.

The second plaintiff, Douglas Thompson, had tried to enrol on the Friday before the announcement of the election; had used an electronic signature and that was not accepted; had tried to also enrol on the Thursday for a transfer from his previous division in Wentworth to Sydney where he currently was residing at that time, could not get through on the website and eventually lodged his transfer after 8.00 pm on the Thursday, which was after the deadline but within the seven-day period that existed prior to the 2006 amendments.

The way in which it is put for each of those plaintiffs is that each had been excluded from being able to exercise their constitutionally protected franchise. In respect of the first plaintiff, that is Shannen Rowe, she is excluded altogether from exercising the franchise in relation to her representative in the Senate and her representative in the division in which she lives.

In respect of Douglas, the second plaintiff, we say he is registered in a division that he no longer resides in and is required under the Electoral Act, by reason of not having the seven-day period available to him, to vote for a representative that is not his representative – we will come to this in a moment. The representative democracy relates to a representative in the division in which you reside at the time of the vote, not a representative in general. He is required to vote for someone’s else’s representative in the House of Representatives, but because he did not move out of the State he votes for his representative in the State.

Can I go straight away to the Constitution. The case raises sections 7, 24, 29 and 32. The Court considered 7 and 24 in some detail in Roach, but we wanted to put emphasis on section 29 and also sections 7 and 24 to say that the essential basis of representative democracy prescribed by the Constitution is a democracy where people, citizens, have a franchise in respect of the representative for the division or the State in which they reside.

GUMMOW J: The question is, what do you mean by “have a franchise”? This is a case, is it not, about the machinery for the exercise of the franchise. Roach was a case about the existence of a franchise. I am not saying it is fatal to your arguments, but is that not the relevant distinction?

MR MERKEL: We say, your Honour, the machinery is merely the means by which the franchise is to be served. The machinery cannot dictate the franchise. The machinery provisions, like any other provisions, can be used to disenfranchise adult citizens from having a right to vote.

HAYNE J: That is mashing two separate ideas together, is it not, in speaking about mechanisms for enrolment as wholly equivalent to the notion of franchise? The two are distinct, are they not?

MR MERKEL: They are certainly distinct, your Honour, but - - -

HAYNE J: Each plaintiff is qualified to enrol?

BELL J: Under 93(1).

MR MERKEL: Yes, your Honour. They were qualified to enrol and remain qualified to enrol, but the enrolment is the vehicle by which they can vote at the election, that is, exercise the franchise as at the date of the election. The question becomes, what limitations are there that can be imposed on their access to that franchise? As adult citizens they form the subject matter of the representative democracy and the franchise that was considered in Roach and they have their role in that franchise as citizens and members of the people, as enunciated in sections 7 and 24. But if, for example, the enrolment was required six months prior to the date of an election or 12 months prior to the date of an election and it could be closed on the day of the issue of the writs and there was no fixed dates, there would be a question, we would say, inevitably as to whether the vehicle used to access the franchise was itself dictating the franchise rather than vice versa.

We would say that the franchise is at the date of the election. Adult citizens as at that date are entitled, on the Roach principles, to participate in the election of their representatives. The means by which they do it is set out in the Electoral Act, but there is no constitutional protection nor is there any constitutional provision for enrolment. It is the franchise for which the Constitution provides, and the question is – and we say it arises very much under the two questions in Roach. First, does the vehicle by which the franchise is to be given effect to limit that by way of disentitlement? We say, enrolment in the present situation is shown to do that.

GUMMOW J: It has to be impermissibly a limit, does it not? There has to be some notion of proportion does, there not?

MR MERKEL: Yes, your Honour.

GUMMOW J: You are not arguing for a system of permissible enrolment on the very polling day, as they have in Canada, for example.

MR MERKEL: No, your Honour, we do not - - -

GUMMOW J: You are happy enough with the previous system of seven days?

MR MERKEL: Yes, your Honour.

GUMMOW J: Which itself was not an absolute, you see. That was a reasonable regulation of some sort.

MR MERKEL: Yes. We say that – and I will come to it – when the legislative history is understood, and, of course, we have gone to the plaintiff’s situation, that what the evidence shows is that 100,000 other adult citizens applied to be enrolled or have their enrolments transferred within the seven-day period. So accepting what your Honour said, is it a permissible limitation, we say that gives rise to the second question, has there been a substantial disenfranchisement? We say the figures which are established on the evidence, before we go into the reports, show that many hundreds of thousands of people, young electors, mostly in a younger group because they are the ones that are mobile or new enrolees or have been removed under this continuous roll update system, they rely on that election period and have traditionally been able to rely on that election period as a way of updating their enrolment.

It was the removal of that right which we say gave rise to the problems that have occurred in the present case and it was a problem that was identified in 1983 when there was a change in practice. So we say, is it a permissible restriction? We say the question is, is there substantial reason for abrogating the seven-day period? We say when the evidence is looked at, there was no evidentiary basis for what in fact occurred. If one can look at - - -

FRENCH CJ: Just stop for a moment before we get into the evidentiary basis for it. It is really coming back to a point which I think was engaged by Justice Hayne in response to your opening remarks. You seem to eschew, in your submissions, characterisation of these provisions as procedural and yet it does not seem to me clear why characterisation of these provisions as procedural machinery provisions of itself necessarily affects your argument. Roach was a case involving a disentitling status, in effect.

This is a case involving a procedure by which people get on the roll and therefore have the statutory entitlement to vote, which translates into a duty on the part of the relevant electoral officer to put them on the roll and to receive their vote. The question surely must be whether there is any limiting principle arising out of the constitutional requirement that members be directly chosen by the people in 7 and 24 that says that some procedural bar of the kind which has arisen in this case, that is, the cut-off of the date of the issue of the writs, is an impermissible interference with that constitutional mandate.

MR MERKEL: Yes, your Honour.

GUMMOW J: And, therefore, a limitation upon section 51(xxxvi) of the Constitution upon the power of the Parliament which enacted these changes made in 2006, of which you complain, in items, I think it is, 41 and 52 of Schedule 1 of the 2006 Act No 65 which put in these sections, of which you now complain. The question may be whether the legislative power to do that, which seems to be based in 51(xxxvi), was relevantly constrained by the requirement of exercise of choice under 7 and 24.

MR MERKEL: Yes, your Honour.

HAYNE J: And the engagement of 51(xxxvi) is in this case with section 31, not as it was in Roach with section 30. Section 30 is qualifications, section 31 is, if you like, the mechanisms, is it not?

MR MERKEL: Your Honour, what we are contending is the mechanism can be as defeating, albeit maybe indirectly, of an entitlement in respect of the franchise as an application by way of status. If, for example - - -

GUMMOW J: You may be perfectly right, but can you not be perfectly right consistently with what Justice Hayne, the Chief Justice and myself have been putting to you? I should have thought so. But, if you do not want to say so, say so.

MR MERKEL: We say, with respect, your Honour, it goes to the substantive aspect and the consequences.

GUMMOW J: You use this dichotomy between procedure and substance and one thing we all know sitting in courts is that is a difficult distinction. Why it should be translated into this form of discourse, I do not immediately see. The question is surely better approached through the text of the Constitution and the notion of choice, the section Justice Hayne just referred you to, and the power in 51(xxxvi).

MR MERKEL: We do not have any problem with that, your Honour, but we say the consequence is disentitlement or exclusion.

HAYNE J: Well, whatever colourful term you seek to apply to it, whatever conclusionary term you seek to apply to it, is not the root question whether 51(xxxvi), in its engagement with 31, is limited, which I would have thought seemed to be common ground all round, by 7 and 24’s reference to “directly chosen by the people”?

MR MERKEL: Yes, your Honour.

HAYNE J: And the limit which you say is passed by the impugned provisions is, is it, that application of those provisions will not yield Houses that meet the constitutional description, or do you put the limit that is reached in some other fashion?

MR MERKEL: No, your Honour, we say that it must be founded on those sections and it will not yield the Houses chosen by the people because there is an exclusion from that category of a substantial body of the people from exercising the franchise and, therefore, making it a choice by the people for a reason which we say is not a substantial reason.

CRENNAN J: So we have this statutory disentitlement for people otherwise qualified to vote and, as I understand your argument, you are saying that detracts from, on one view, universal adult suffrage.

MR MERKEL: Yes, your Honour.

CRENNAN J: Mr Gageler would say the statutory ban for a period on considering a claim under section 102 of a person qualified to vote under 93(1) is in the interests of having an orderly election.

MR MERKEL: Yes, your Honour, and those words “orderly election” have a resonance about them. We say that they are unsustainable on any view. Can I just take your Honour to the most obvious example? The evidence establishes clearly that there is this continuous roll-up date procedure and substantial numbers of electors are removed from the rolls because they change residence. They are given an objection procedure and it may happen that they are removed without their notice because they have moved to an address which they may not be located at, and are removed.

There are other instances where people like our second plaintiff have just moved to another area some months ago, had not turned his mind to registering the transfer, did so before the election, tried to do so during the seven-day period and was a few hours out. There are hundreds of thousands of people in that situation.

There was a seven-day period based upon the chaos that happened in 1983 imposed by the 1983 amendments. In 2006 that seven-day period was reduced to three days. What possible rationale could be put forward for reducing a seven-day period, which we say was the constitutional minimum margin for appreciation between election and the seven-day period, but what possible rationale could be put for reducing it, other than by whim? It is as arbitrary and capricious as one could imagine.

CRENNAN J: I think Mr Gageler would say it was prophylactic measure in relation to the possibility of electoral fraud.

MR MERKEL: Well, your Honour, that makes my point. If there is going to be electoral fraud on residential changes, what is the difference before the writs, what is the difference in the three days after the writs and what is the difference between three and seven days? Absolutely nothing. There is not a skerrick of evidence that can be pointed to that fraud was problem, but even accepting if was a problem, how is this prophylactic? What was prophylactic were the identity requirements introduced as part of the 2006 amendments which required identity as part of this process.

What has been prophylactic are the computerised techniques undertaken which have made any argument about reducing seven days to three absurd. There is something like 500,000 transactions within the five-day period of this election although the statutory requirement is three, so many of those would not have been within that period. Now, when we see provisions operating as arbitrarily on what could be no more than a whim – because my learned friend may have said it was prophylactic to close the rolls for new enrolments, but once the rolls stay open, there is nothing prophylactic about it.

FRENCH CJ: What is the constitutional significance of seven days?

MR MERKEL: The constitutional significance of seven days is simply this, your Honour, that as a result of the legislative experience, which I will come to shortly, but the 1983 election, as a result of a change in practice, disclosed the fragility of the franchise in respect of the executive decision about when to announce an election. Under the Constitution the provision for writs requires no more than writs – that is under 32:

be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution –

We do not have announced or fixed dates. Historically, the announcement gave the warning to the electorate “now is the time to enrol”. That practice was departed from in 1983 and it was that departure that led the Parliament to conduct its inquiry and form a view that seven days was an appropriate period to enable new registrations and transfers or re-enrolments. We say that the margin of appreciation was set by that standard between election day – it could have been closing the rolls on election day – or within the seven-day period.

Historically, that period has worked. Sure, some people have missed the franchise, but that period of seven days has, in practice, worked without any problem and suddenly, in 2006, without the benefit of an explanation, no second reading speech, a hotly politicised issue between the parties about whether there should be a closure of the rolls or seven days - - -

GUMMOW J: We cannot get excited whether it is hotly political or not.

FRENCH CJ: What is the criterion of constitutional impermissibility, if you like, that says that when you come down below seven days you have crossed some line, which is extracted out of sections 7 and 24?

MR MERKEL: The answer to that, your Honour, is that there was constitutional impermissibility, we would say, prior to 1983 in the light of the 1983 experience, which was addressed by Parliament by creating a seven-day period. When the Parliament reduced the seven-day period to nil or three days, as the case may be, for enrolments or transfers, that raises the question - because it has the practical effect of substantial exclusion of many electors from voting - was there a substantial reason for doing so?

HAYNE J: I do not think that is answering the Chief Justice’s question at all, Mr Merkel. Do you want to grapple with the notion of why seven? If you do not, do not.

MR MERKEL: We say that is the minimum, your Honour.

HAYNE J: Yes. Why is it the minimum?

MR MERKEL: Because it has been shown not to have resulted in such substantial disenfranchisement that it means that it is no longer a parliament that is yielded by the vote of the people.

HAYNE J: That is a proposition that depends in part, though not entirely, I think, upon two related notions that are in play which you may need to explore: one, what content you are giving to the expression “directly chosen by the people”? Are you, for example, giving it a content that would require that there be a system of compulsory voting and enrolment? Are you giving it a content that would ascribe to it the capacity to exercise the right to enrol at some specified time, or are you giving it a content by reference to result, that is that there is more than or less than a few per cent of those who are entitled to enrol who do not? That is one set of questions.

The other set of questions that I think your answer implicates and requires at some time you to consider just what you mean by this notion of disentitlement. We have had in your opening remarks frequent reference to disenfranchisement, disentitlement and the like. It seems to me at least at first blush that you give a very special meaning to that because there is an entitlement to enrol, not just an entitlement, an obligation to enrol, an obligation enforced by penalty, encouragement provided by abandonment or forgiveness of offence if you do claim. So in what sense are you speaking of entitlement? But come to these matters if you wish, when you wish.

MR MERKEL: Your Honour, in terms of what we have referred to as the protected franchise resulting from the Parliament being chosen by the people, we say that has come to evolve as encompassing adult citizens who wish to vote and must be entitled to do so unless excluded from voting for good reason – of unsound mind; the Court held prisoners of three years but not just their happening to be in prison who are adult citizens. It was initially 21. It moved to 18 and it would probably not be acceptable to move back to 21 unless there was some substantial reason shown for a change that limits that franchise.

So we say that is the category of person that we say, under the Constitution as at present, are entitled to vote. In terms of a mechanism, what we say is, that the enrolment process we accept is a necessary and reasonable aspect of the limitations on that right, but it should be no more than is necessary or appropriate to give effect to the right. We do not contend for seven days. We accept that seven days was stipulated by Parliament in 1983 for a reason which we do not wish to dispute. We say that what has occurred by the abrogation of that seven-day period is a substantial exclusion of adult citizens who wish to vote, a minimum of 100,000 in the present case – and may I say this.

When I say a minimum of 100,000, under this power, and it is the challenge of the conferral of the power not how it is exercised, the chop-off point or cut-off point can be no time at all, the writs can issue on day of announcement, so there would be no new enrolments for those who have been removed, or three days for transfers. There were 508,000 transactions, on the evidence in the present case, but these are not startling numbers on past history, that were within five days because there was a provision of two days and five days rather than the theoretical, the possible nought and three days. So hundreds of thousands of people are able to be disenfranchised by the exercise of an executive power and we say that executive power is a matter of discretion.

GUMMOW J: What executive power? It is not by executive power, is it?
It is by the exercise of the legislative power.

MR MERKEL: Sorry, that is correct, your Honour. The executive power to advise the Governor-General to issue the writs is the power that determines – and the executive power to announce when the election will be because it is not otherwise fixed, gives a discretion which can be exercised in a manner that can include or exclude hundreds of thousands of citizens.

FRENCH CJ: But the validity of this provision cannot depend upon the accident that a number of citizens who at any particular time might be affected by it, can it? Suppose, for example, the Commission had embarked upon an enhanced program, and we have seen reference to programs of encouragement to people to enrol, which had been singularly successful, such that there are only 5,000 people affected by the cut-off, does the validity question change according to the number of people who are affected from time to time?

MR MERKEL: No, your Honour. It is the way in which the power can be used to disenfranchise for no good reason. We say that we are confronted here with a 1983 regime which has been changed and has this substantial disenfranchising effect for no good reason, for no substantial reason.

KIEFEL J: But to an extent you do rely on the practical effect of the legislation, do you not, because the legislation taken by itself does not prevent anyone enrolling and, therefore, exercising their franchise? It is the act in combination with people who are dilatory in enrolling that has the result that you complain of. Now, my question is, how do you approach the invalidity of legislation where it only has the effect complained of, where there is a human action involved, one which involves a non-compliance with the legislation itself?

MR MERKEL: Your Honour, with respect, that begs the question, when your Honour says “dilatory”, we say that - - -

KIEFEL J: There is an obligation under the statute to claim your enrolment or your transfer of enrolment and there is a prosecution available. It is an offence not to do so.

MR MERKEL: It is, your Honour, but the sole function of that provision is to facilitate as a means the person’s right to vote. It is a continuing obligation discharged when a claim is lodged, if before a prosecution. We say, your Honour, that where that provision operates in a way - for example, if it were an offence not to update your enrolment every six months and that had the effect of a lot of people dropping off the rolls, that may no longer be serving the purpose of having an accurate enrolment and encouraging participation as at the date of the election. We say, your Honour, enrolment, the requirement to enrol, while legislatively mandated, does not necessarily meet the constitutional requirement which is that it is to serve the right to vote, not to have a function of disenfranchising people from having that right to vote.

KIEFEL J: It is a right, a constitutionally entrenched right?

MR MERKEL: Your Honour - - -

KIEFEL J: You are being a little loose with language, perhaps.

MR MERKEL: Your Honour, I am trying to – Chief Justice Gleeson discussed it in Roach as a right to vote. In the plurality judgment it was discussed in terms of, in substance, a constitutionally protected franchise which was not to result in exclusion, disentitlement or disenfranchisement other than for substantial reason. We say that where - - -

KIEFEL J: But if it were a right as such there could be no real limit of the kind we are speaking of and you accept that there can be some limits placed upon - some restriction on the time at which you have to be enrolled.

MR MERKEL: Yes, your Honour. We do not have any problem with electoral rolls being necessarily facilitative of the franchise that is required to yield parliaments chosen by the people. But it should go no further than that which facilitates that end. It should not become an end in itself. The way in which your Honour has put it to me makes the duty to enrol, as an end in itself, not a vehicle to achieving the entitlement to vote, so that if the enfranchising and enrolment provisions in conjunction had an unreasonable exclusionary effect, we say that would infringe the constitutional protection.

I was going to mention to your Honours in Snowdon v Dondas 188 CLR there is reference in the joint judgment. This is at page 71 where Justice Isaacs is cited in Kean v Kerby where his Honour had said:

The importance of maintaining unimpaired the exercise of the franchise hardly need be stated.

That was stated by the majority, by the joint judgment, and then Justice Isaacs had said:

“The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it.”

We say all the more so enrolment being a means of protecting the franchise cannot be made an instrument of defeating, undermining or limiting it other than for substantial reason.

GUMMOW J: If you are looking at Justice Isaacs, it may be useful to look at Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 at 385 for this proposition, I think, that notion of individual right is not by any means the central point. The central point is the community interest in obtaining the Parliament complying with sections 17 and 24. Sir Isaac Isaacs talked about “method of choosing representatives”, what may be demanded of citizens, including compulsory attendance, and:

The community organized, being seised of the subject matter of parliamentary elections and finding no express restrictions in the Constitution, may properly do all it thinks necessary –

and he is saying necessary through the Parliament, I imagine –

to make elections as expressive of the will of the community as they possibly can be.

Is that not a starting point?

MR MERKEL: Yes, your Honour, and we accept that, and I will take your Honours, if I might - - -

GUMMOW J: And this notion of “as they possibly can be” brings in this notion of practicalities and machinery and the operation of machinery.

MR MERKEL: Yes, but ultimately, as we have put it, to serve the end of the franchise.

CRENNAN J: The end being participatory democracy.

MR MERKEL: Yes, your Honour.

FRENCH CJ: And perhaps thereby attracting a strict scrutiny approach to procedural mechanisms which had the effect of preventing somebody from exercising the franchise.

MR MERKEL: Yes, your Honour. We would say, with respect, that would follow and we would - - -

HAYNE J: But it is also of importance to notice in what Justice Isaacs was saying in Judd v McKeon and he began from the proposition that there was no relevant express restriction in the Constitution, in effect, that required compulsory voting. It permitted it and the community could choose, as it did, in 1924 through Parliament to make for compulsory voting. Now, that is why I say you must begin, I suspect, from an ascription of content to directly chosen by the people, and an element of ascription of content must be whether, and Justice Isaacs appears to assume to the contrary, compulsory voting is necessary to achieve that constitutionally required result of directly chosen by the people or, rather, whether, as Justice Isaacs appears to be saying in Judd v McKeon, well, that was a parliamentary choice and the parliamentary choice being for compulsory elections, then certain things follow. But if the Lord giveth, the Lord taketh away, and you must be able, I think, Mr Merkel, as I say, to begin from what you are saying is directly chosen by the people.

MR MERKEL: We accept that, your Honour, but on the compulsory versus voluntary voting we say that we do not have to buy into the debate about either. We say that the irreducible minimum of the right must be those who are otherwise qualified and wish to vote and this case - - -

HAYNE J: And wish at what time?

MR MERKEL: At the election.

HAYNE J: At election?

MR MERKEL: At election. That franchise should be cut down no further than is necessary, appropriate or adapted - it does not matter for our argument – to facilitate that wish to participate and ensure the Parliament is chosen by the people. We say the experience of 1983 and up to 1983 - and it comes out very clearly from the agreed facts at pages 90 and 91 - that showed the fragility of such a fundamental constitutional protection, subject to a decision of the Executive Government, as to when to announce elections, there being no fixed election date.

That table tells you from recent history in the 30, 40 years before 1983 how much time there was between announcement and closure of the rolls under a same-day closure regime but in 1983 that all derailed with a double dissolution and as Justice Murphy had explained in R v Pearson; Ex parte Sipka [1983] HCA 6; 152 CLR 254 at 266 - his Honour explained what had happened is that there had been disavowal of any early election and then without prior notice there was the election announcement “in the late afternoon of 3 February” which had the consequence of the writs issuing on the 4th and there was, in articles I will refer your Honours to later, a very substantial dislocation in respect of voting because the fact is election after election after election there is a spike in enrolments from the announcement of the election. That is the historical fact. It is the experience and it is part of human nature.

CRENNAN J: Just picking up – if I may clarify a point about paragraph 3 of your reply – I just wanted to be certain about the submission you were making in relation to the different legislative scheme prior to 1983. You have shown some figures in relation to it on pages 90 and 91 which you were just looking at. Are you contending that the provisions as they stood before – I understand you are contending that they did not operate to burden in some way participation in democracy or burden – they did not operate in a way that was incompatible with sections 7 and 24, but on the question of validity, which is raised by Mr Gageler in his paragraph 67, what are you saying? From your paragraph 3 I thought - and I want to be corrected if I am wrong – you seem to be saying that the provisions as they existed prior to 1993 were valid but to reinstitute similar provisions in current circumstances is constitutionally impermissible.

MR MERKEL: No, your Honour. We do not and cannot mount any case on validity or invalidity of those provisions. Rather, what we introduce paragraph 3 by is the reference in paragraph 2 to the representative democracy being an evolved evolutionary process that must recognise changed historical circumstances, legislative history, experience and the world we live in.

We have no idea what kind of regime would have existed at different times in respect of enrolments prior to 1983. What we do know is by 1983 the public had relied upon and it was well known that an election announcement was a time at which people, the people with the franchise, turned their mind to updating enrolments or re-enrolling. When the fragility of what they thought had been their entitlement to vote was shown by an executive decision that closed the roll that excluded them from voting, that raised the question about should there be a minimum protection which led to the 1983 amendments.

What we say, your Honour, is that that protection then became the legislative regime and part of the legislative history and part of the changed circumstances that lead us to 2006, including the innovations by computer updating checks that are the real prophylactic measures of protecting the integrity of the roll, so that when we come to 2006 and they want to take away what we would say was the constitutionally minimum protection, we do not say it was necessarily constitutional, but we have no quarrel with the seven days, any more than we may have a quarrel with a prisoner for two years versus four years, but when that is taken away and it has the dramatic consequences that we have seen, the question must arise, is there a substantial reason for doing so in the present context because it is not helpful, we say, to consider what should have been the case in 1945 or 1962.

What we do know is what happened in 1983 and it was the vulnerability to executive conduct which, by decision as to when an election is to be announced and when writs are to be issued, can have an executive decision as to that causes disenfranchisement. So the government could have announced an election and issued the writs two weeks later and the problem would not have arisen. It is the power to say that there shall be no gap, given that that is the time at which the people turn their mind to and engage in enrolling and quite reasonably do so.

Of course, section 101 has its own restrictions, but section 101, which requires enrolment and transfer notification forthwith, is not as simple as that. As we have pointed out in our reply it has a continuing obligation which is discharged prior to prosecution and so we say that it should not be used as a vehicle to defeat the ultimate right. I am not sure that I have answered your Honour’s question, but we do rely very much on the changed historical circumstances and legislative history.

KIEFEL J: May I ask you a few matters arising out of that? Are you saying that the legislature has to address a change in executive practice?

MR MERKEL: We say that if the fragility of the franchise is shown up by executive practice, the legislature needs to discharge its role of ensuring that the people have the opportunity the Constitution requires, that the Parliament be chosen by them and it be limited by no more than is necessary or appropriate.

KIEFEL J: So your answer is it has to respond to what it sees occurring?

MR MERKEL: Well, your Honour, it does not have to respond. If the regime had stayed as it was after 1983, this case could have been mounted in 1984. We do not say what Parliament has to respond, but we say that if fails to respond, the legislative regime that had been exposed by what happened in 1983 as deficient would have to be addressed or be found to be invalid.

KIEFEL J: Yes, I see. Similarly, the legislature, is it obliged to take account of the fact that people may wait until an election is called? Is it unable to proceed upon the basis that people will fulfil the obligation that the statute lays down? I put this seriously as a question following on from the one I asked you before because it is a rather unusual position, is it not, that you are saying that the legislature is – it is valid legislation to say that people are obliged to take up what is a citizen’s obligation and that there may be offences stated for that and it is put on a timely basis, but, nevertheless, it should also build in some qualifications for that? It is not often done in relation to laws which prescribe or require conduct in a timely way. It is an unusual situation in that sense.

MR MERKEL: It is, your Honour. It is an unusual section but it is essentially remedial to encourage enrolment for the purpose of voting and we would contend that it – can I put this hypothetical situation. If you were penalised for not enrolling within time by losing the right to vote at the election, we would say that would not meet the constitutional requirement because you would be disentitled by a vehicle aimed at entitlement. So we say that there should not be a disentitlement flowing from section 101 and, indeed, legislatively, not only is it not intended there be no disentitlement, but it is intended by reason of subsection (7) that it be a continuing obligation so that you will become entitled to vote.

KIEFEL J: Perhaps that is not your strongest point. Subsection (7) operates so as to effectively excuse people as long as they have their claim for enrolment in before the prosecution commences. That does not cut back their obligation.

MR MERKEL: It does not cut back their obligation but it shows it is a continuing obligation that it is effectively discharged when you lodge a claim.

KIEFEL J: Perhaps your better point is that it may recognise that their participation in the role of a citizen in voting is perhaps more important than sanctions?

MR MERKEL: Yes, your Honour.

KIEFEL J: It may recognise that. It might cut both ways but it might recognise that.

MR MERKEL: We say it ought to recognise that but really the question, ultimately, either way comes down, as we have said – we tried to address this in paragraph 6 of our reply submissions where we say that the plaintiffs, and those in similar circumstances, have taken their steps and have discharged that obligation, albeit late. So the complaint is the timeliness of those steps, but we say that should not warrant losing the franchise, and that is the consequence of an argument, well, they only have themselves to blame.

KIEFEL J: As I understand it your argument you do not cavil with the idea that it would be legitimate and legislation would be valid to provide for some cut-off so that it says – it is not saying that you are not able to vote but that if you do not enrol in a timely way you cannot exercise it. Your point, reduced to its essentials, I think is simply that you cannot in any event, say that this period is either, I think the way you put it, is necessary or can be justified. Are they the two essential points upon which you put it?

MR MERKEL: Necessary, appropriate or justifiable.

KIEFEL J: They are the way in which you would describe a proportionality argument?

MR MERKEL: Yes, your Honour. We go to this with the substantial reason. It has the disenfranchising consequence or exclusion consequence. We then say that it has to be reasonably appropriate and adapted. We say that adapted by reference to the abrogation of the seven-day period. We do not wish to get into an argument, nor can we, about the validity of the seven-day period. Our only question here is it was abrogated and what possible reason was there for it? We say that looked at objectively there was not any. It was a political dispute about the extent to which the Executive should have this power to close the rolls on the day of the election or to choose otherwise.

We say, when I take your Honours to the different reports, the committee had changed its mind from time to time, but insofar as it was said to be prophylactic of fraud it is not a sustainable proposition because there was no evidence that this seven-day period was being used for fraud and, as I said before, why three days? Why not cut off transfers on the same date as cut off new enrolments.

Whichever way one tries to analyse what the Parliament did it is just not sustainable. There was no mischief that was being addressed, there was no recognisable defect in the seven-day notice period, there was no suggestion it caused any particular problems and the ultimate irony is when one looks at integrity of the roll the orderly conduct of – the word “orderly” has a certain history in the law which is not a very helpful way of looking at it.

The integrity of the roll, which is a legitimate end with which no one can quibble, is to record high participation rates so that the enrolments reflect the people; accuracy, so that those entitled to enrol are enrolled for the correct division so they choose their representative under the Constitution. The seven-day cut-off period was put forward strongly by the Electoral Commission as achieving both of those objectives, encouraging participation so that we had chosen by the people and encouraging integrity by ensuring accuracy, both in terms of entitlement and in terms of transfer for residents.

What possible justification could there be for limiting those two factors unless there is some substantial reason shown? Words like “prophylactic”- they are my learned friend’s rationale. The parliamentary committee said we must remove the risk of fraud. The prophylactic requires some underlying condition that exists.

GUMMOW J: Where do we see this word used by the Solicitor, which you are turning into a rod to beat him with?

MR MERKEL: “Prophylactic”, your Honour, is used by my learned friend - - -

HEYDON J: Paragraph 66.

MR MERKEL: Paragraph 66. Could I just point out to your Honours - - -

FRENCH CJ: We cannot get into a situation, can we, of, as a Court, passing judgment on the merits of parliamentary debate about the justification or otherwise of this measure?

MR MERKEL: No, your Honour, we need to look at the - - -

GUMMOW J: We need to look at the practical effect of the measure and to that degree one can have regard to this evidentiary material.

MR MERKEL: Sorry, your Honour?

GUMMOW J: One has to look at the practical effect of the law to assess its validity and to that extent one can look at this material that you have been putting to us.

MR MERKEL: Yes, your Honour.

GUMMOW J: It is not just its legal effect. It is a practical effect.

MR MERKEL: Yes, your Honour.

FRENCH CJ: But whether the debate was politicised or otherwise surely is nothing we are concerned about.

GUMMOW J: That is all anterior to its practical effect.

MR MERKEL: Yes, your Honour. We endeavour to put it two ways. One is that it is the conferral of the power that we are considering and the manner in which it can be exercised tests its constitutional validity. We say that one of the more insidious aspects of the power is to use it for politically motivated reasons. We know that the evidence establishes that the - - -

GUMMOW J: That does not matter, does it?

FRENCH CJ: The power you are talking about there is the power to decide when to announce the elections.

MR MERKEL: Yes, your Honour. No, sorry, when to issue the writs.

GUMMOW J: Yes.

HAYNE J: You are not going to tell me those decisions are not affected by political considerations. Of course they are.

MR MERKEL: What we say, your Honour, should never be affected by political considerations is the exercise of a power that has the consequence of disenfranchisement.

GUMMOW J: What you have to say is, given the scope of a political decision under section 31, you have to say the confidence then reposed in the Parliament in legislating under 51(xxxvi) has to make allowance for that and make allowance in a way that produces, so far as practicable, a machinery which permits maximum exercise of the franchise.

MR MERKEL: Yes, your Honour, we accept that - - -

GUMMOW J: The Constitution is a political document. I do not see why the word “political” has to be used as a term of opprobrium.

MR MERKEL: Your Honour, we have no difficulty with that formulation and we say that the seven-day period has been established as not producing advice that warranted the abrogation of it, in part, the three days for transferring in whole for enrolments. Can I take your Honours to the material that shows the practical effect of what has occurred?

Your Honour, Mr Dacey’s affidavit in volume 1 at page 29 at paragraphs 7 and 8 show that although the current election was announced with two days between issue of writs and close of enrolments and five days instead of three for transfers, there were 508,000 claims lodged within that period which would have been substantially reduced if the power were exercised in the manner it could have been and was in 1983 and there were approximately 100,000 claims which were made within the seven-day period but outside the three and five-day period. Can I say this, that the website and advertisements of the AEC showed that the rolls closed at Monday 8.00 pm for new enrolments and Thursday 8.00 pm for transfers. So large numbers of the public would have been deterred by that from enrolling or registering transfers. So these are minimum numbers that were affected by the abrogation of the seven-day period.

Could I go to what happened in 2007, in volume 5 at page 1773. In the committee’s inquiry into the 2007 election the AEC was asked if the 1977 election, which had a substantial cut-off – I think 1977 had a cut-off of three days for new and nine days for transfers. I should say, the anomalies in transfers come up because under section 155 days get extended if there is a public holiday anywhere, and I think there was a public holiday in Flinders Island and somewhere else, so the period mushroomed out. But on the basis of the three – I think I said 1927 – 2007 election, on the basis of the figures there, the response is, had there been the earliest possible close of the enrolment transactions, which are new enrolments and transfers, how many would have fallen outside the deadline?

The answer to the question, which is at pages 1774 to 1775, shows 17,208 appeared within the time and the balance of 279, which was 262,261 would have been disenfranchised if the time had been limited to that which Parliament had empowered the Executive to exercise concerning the issue of the writs. I should say, other statistics show that historically the enrolments always spike in large numbers, enrolment transactions, once an election is announced and usually start off at a slow rate, resulting in a very high rate towards the end of that period. Now, can I go to the agreed facts.

HAYNE J: Which rather suggests the futility of inquiring how things would have been different if things had been different, Mr Merkel. If people tend to leave things to the last minute, they do, and simply demonstrating that you own a calculator and saying there would have been X number had it been done earlier, really goes nowhere.

MR MERKEL: Except what I am indicating, your Honour, is the practical consequences of abrogation of the seven-day period are extremely substantial. We dealt with this in the agreed facts and can I take your Honours to those.

HEYDON J: Page 92?

MR MERKEL: Yes, your Honour. The agreed facts at paragraph 11, page 92, going to the amount of transactions:

In 2004, the post announcement enrolment period was 9 days for both new enrolments and updating existing enrolments and there were 423,993 –

transactions during that period. One can see the break up of transactions in that table – new enrolments 76,000 and total enrolment transactions, 423,000

FRENCH CJ: Sorry, is that new enrolments 78,000? You said 76,000.

MR MERKEL: Sorry, your Honour. In paragraph 13:

In 2007, the post announcement enrolment period was 3 days for new enrolments and 9 days . . . and there were –

279,000 transactions, which I just took your Honours to. In paragraph 14, 17,000 or 6.15 per cent were on the first day, which I have just taken your Honours to. In 15:

In 2007, 100,370 people lodged claims for enrolment and transfer after the close of rolls. The equivalent number in 2004 was 168,394.

16. The numbers of enrolments, re-enrolments and transfers of enrolment for the 1993-2001 elections for the period between the issue of writs for an election and the closing date for the lodgement of –

the period or transfer were broken down by age and the point that we wanted to make here which seems indisputable from all of the material is that this abrogation of the seven-year closure falls disproportionately – the burden of it – on the age group between 18 and 30, new enrolments particularly for 18, and mobility of young people aged between 18 and 30, so some - - -

FRENCH CJ: What is the constitutional significance of that, to your argument?

MR MERKEL: Your Honour, at the first level none in that it is exclusionary and it matters not of whom it is exclusionary. That it falls disproportionately as a burden on particular age groups and is known to fall disproportionately on different age groups, your Honour, we say can have significance because it cannot be said this burden falls evenly on the whole community. My learned friend’s submissions suggest that the section itself is not discriminatory in the sense of a prisoner being disenfranchised for three years or no years. We say that this does fall disproportionately and is known to fall disproportionately so it is a particular burden on a particular part of the people.

KIEFEL J: It does not operate as a burden on them. It just shows that people between 18 and 30 tend not to enrol until the last moment.

MR MERKEL: Or record their transfers.

KIEFEL J: Yes, but it does not mean that the legislation operates a burden upon them.

MR MERKEL: We say, your Honour, the practical effect of the operation does.

KIEFEL J: They burden themselves.

MR MERKEL: Well, your Honour, that takes us back to section 101 again, but we would say the practical consequence of the abrogation of the seven-day period, which is what we are concerned with, has this particular disenfranchising or exclusionary effect on a known age group.

KIEFEL J: It is one thing to talk about practical effect. I think it is another thing to talk about the direct effect that the legislation has upon groups of people. If you are going to identify a group of people who are more practically affected by the legislation you could say they are people who do not enrol in time or transfer their enrolments in time. That is the group most affected.

MR MERKEL: Yes, your Honour, but - - -

KIEFEL J: It is the only group affected, except for a very small number who would be on the margin at the time that the writs are issued.

MR MERKEL: That takes us back to which of the provisions is serving the other, your Honour.

KIEFEL J: All I mean by that is the discussion about groups of people – this is not a discrimination case. The discussion about groups of people perhaps takes you nowhere when you are talking about the practical effect.

MR MERKEL: I accept what your Honour says. At the higher level the practical effect is exclusionary and therefore limiting on who are the people who exercise the franchise but we do go down, if it be relevant, to that next level and say it is known that this particular group will suffer the practical consequence because they constitute 50,000 of that close of roll of transactions. I do not need to labour the point, your Honour. If I can move on. At paragraph 17:

Day-by-day data on enrolment transactions in the period between the issue of the writs for an election and the closing date for the lodgement of a claim to enrol or to transfer an enrolment for the 1998 and 2001 elections was that the number of new and re-enrolments increased daily during the 7 day period (except on Saturday and Sunday), culminating in nearly 50% of new and re-enrolments occurring on the last day, as shown in the table below.

Then one gets those figures from the table. Even going back to what your Honour Justice Kiefel said to me, well, therefore why did the legislature give the benefit of three days to the transferees who were equally culpable by not registering their transfer by the close of writs. We say that that just shows the arbitrariness of what the legislature has done here. If it were a policy to say they only have themselves to blame we say that is not a sufficient reason. It still comes back to whether this - - -

KIEFEL J: They are already enrolled, of course, so – I do not know.

MR MERKEL: Except it has the added anomaly, your Honour, by burdening those persons, or limiting their rights, as with Douglas, the second plaintiff, is required to vote for someone who is not his representative, so what justification is there for doing that with it?

GUMMOW J: On this question of practical effect, I am not sure it is really addressed by the Commonwealth other than paragraph 66 and surrounding portions, but however that may be, what do you say about paragraph 47 of Western Australia’s submissions, what Mr Mitchell says there under the heading “Conclusion”?

MR MERKEL: We say, your Honour, what we have described is, in substance, in terms of practical effect, a legislative disqualification or exclusion. We use the words in Roach which talk of “exclusion”, “disentitlement”, “disenfranchisement”. We say that is the consequence and the practical effect of the abrogation of the seven-day rule. I mean we say informal votes do not say anything that is a consequence – that is not a consequence of any legislative barrier to exercising the franchise. It is, in fact, an exercise of the franchise.

GUMMOW J: Yes. You took us earlier to Kean v Kerby 27 CLR, Justice Isaacs’ judgment, which is an election petition fought out over five or six days in the Court. At page 459, there is what may be the starting point in these sorts of questions, I think, by Justice Isaacs. He talks about the notion of “free” elections as an English inheritance, lying at the root of election law and you see that portion beginning:

For centuries parliamentary elections were conducted by open voting.

MR MERKEL: Unfortunately, I do not have that with me, your Honour. I had Snowdon. My learned friend has handed it to me, your Honour. Where is it - at page 459, your Honour?

GUMMOW J: Page 459. Good idea to bring books, you know.

MR MERKEL: I could come back to that, your Honour. On the agreed facts, we set out at paragraphs 18 to 24 the facts that show how the abrogation works, or relevant to how it works in respect of young people:

During the 2004 post announcement period 81% of new enrolments were persons aged 18 to 24:

1. There were 78,816 new enrolments in the post announcement enrolment period
   
2. 37,007 were of persons aged 18 on polling day
   

100. 14,132 were persons aged 19 on polling day
     

4. 13,058 were persons aged 20-24 on polling day
   

As at 30 June 2006, 23.3% of eligible persons aged 18-25 were not enrolled compared with 9.8% of the estimated total number of eligible persons who were not enrolled -

Then in 20:

During the 2007 post announcement enrolment period 76% of new enrolments were persons aged 18 to 24 -

and we get similar statistics. In paragraph 21:

As at 30 June 2007, 19.8% of eligible persons aged 18-25 were not enrolled compared with 8.4% of the estimated total number of eligible persons who were not enrolled.

As at 31 March 2008, 16.63% -

similar figures and:

On 15 April 2010, there were approximately 430,000 eligible young people who were not enrolled to vote.

The latest figures, I think, are that something like 1.4 million persons who are eligible are not enrolled. We say that the Electoral Act process should be facilitating that enrolment, not seeking to impede it.

CRENNAN J: Is that an agreed fact?

MR MERKEL: Your Honour, no, we put it as a submission. Can I take your Honours to some of the material. Whatever might be said about the status of the facts and the submissions, the arguments put by the National Audit Office and the Australian Electoral Commission – and can I just indicate, the statutory function of the Electoral Commission in section 7 of the Act include, “consider, and report to the Minister on, electoral matters” and “promote public awareness” and “provide information and advice on electoral matters to the Parliament”. That is in subsection (d). It is set up as an independent statutory authority and came in as part of the 1983 amendments. Can I take your Honours to the submission of the Australian Electoral Commission to the Committee, which is annexure X at volume 4 at 1493.

GUMMOW J: The functions and powers of the Commission at section 7 are not exhaustively laid out. They have to be read, for example, with section 45 of the Financial Management and Accountability Act 1997 which would oblige, I think, the Electoral Commissioner to implement a fraud control plan to deal, amongst other things, with fraud by persons outside the Commission in relation to the activities of the Commission, which would include, and is taken to include I think, electoral fraud.

MR MERKEL: Yes, your Honour. We will take your Honours to material that show how that is dealt with prophylactically in a way that amply is protective of the integrity of the roll given that very little problem had been uncovered.

GUMMOW J: The Auditor-General has a performance audit function, does he not, under section 15, I think it is, of the Auditor-General Act 1997, which is the statutory basis for the materials emanating from the auditor, I think.

MR MERKEL: Yes, your Honour. I should take your Honours, just before going to the Electoral Commission’s submission, to annexure U at volume 4 at page 1055. Page 1131 sets up the National Audit Office’s report on the Electoral Commission’s continuous roll update, which is one of the primary vehicles for maintaining integrity of the roll. That is at paragraph 3.7 of 1131. It sets out historically the process followed at 3.14 at page 1133 in the lead up to 2006:

CRU typically processed 4 million records showing a change of address or likely eligibility to enrol. This led to targeted mail to 2.8 million addresses each year, and fieldwork visits to 330,000 habitations annually -

Then at 3.16:

Since data-matching relies on records from preferably independent sources incorporating at least one common item of information, it will not identify people who have no record on either of the systems being matched . . . Programs like CRU:

• are less effective at making inroads . . .
  
• after a certain number of data-matching cycles, lead to the proportion of electors being removed from the roll rising relative to the number added.
  

Then it says in 3.17:

In this latter respect, by mid-2004 the AEC was aware that it was consistently removing more people from the rolls than were re-enrolling. In 2006, the AEC reported that the rate at which electors were removed from the roll had outstripped both roll growth and the rate of re-enrolment.

Then it goes on at 3.19 of the vanished and missing electors and then shows, at 1136, the graph of enrolment by age group. Then at 3.21 at page 1136:

The data shows the lowest rate of enrolment to be for 18 year-olds (estimated at 52 per cent).though this does not persist.

As they get older, they enrol –

The Electoral Council of Australia has attributed this, in part, to the relatively high housing and workplace mobility of young adults.

HEYDON J: Is this all agreed? You have taken us to statements of fact from 1131 onwards.

MR MERKEL: Yes. Your Honour, I expect over the adjournment I will be able to reach agreement with my learned friend on what I will call statistically based facts, not evaluative judgments.

FRENCH CJ: You are referring to and relying upon 3.14, 3.16, 3.17, 3.19, figure 3.3 and 3.21.

MR MERKEL: Yes, your Honour.

GUMMOW J: And is it agreed that since 1999 the Electoral Commission has used the CRU system?

MR MERKEL: I would expect it would agreed, your Honour.

GUMMOW J: One has regard in that connection to section 111 of the Act which talks about “Computer records relating to the Roll”.

MR MERKEL: Yes, your Honour.

GUMMOW J: The question is whether that has been implemented since 1999 or earlier. It looks like 1999 from page 1131.

MR MERKEL: The reports, I think, make it clear that that CRU program has been working in that way, your Honour.

HAYNE J: What is the conclusion you ask us to draw from this proposed set of agreed facts which it is proposed should be agreed?

MR MERKEL: Your Honour, that there are means that are adequate and appropriate for the protection of the integrity of the rolls and the mitigation of any risk of fraud which do not require or need anything of the kind such as that sought to be justified by the Commonwealth, being abrogation of the seven-day period to prevent fraud. These are directly addressing fraud issues and there is no suggestion in any material anywhere that they are inadequate or need to be supplemented and they are not disenfranchising.

HAYNE J: Well, given that the subject for debate is late claims, late claims for transfer, what connection do you draw between data matching that is done before the period immediately prior to an election and the avoidance of fraudulent claims for transfer immediately prior to an election? There seems to me to be a set of intermediate steps to which you have not yet given attention.

MR MERKEL: Your Honour, what I propose doing under whether this is going to look at the practical consequence of the abrogation of the seven-day period, separately I propose to address your Honours on was there a substantial reason for that abrogation. Under the facts I will take your Honours to the agreed facts are the rigour applied by the Electoral Commission to new enrolments and transfers did not vary in any respect in the post-election and the pre-election period.

HAYNE J: What I am pointing to, Mr Merkel, is that I can understand what you say about the utility of data matching. There is, at least in my mind, a question of how the availability of those techniques sits with the question of dealing with late claims in the immediate period before election. The assumption you seem to make is that the data matching that occurs through the intervening couple of years when the elections are not happening somehow reflects on what is to happen about late claims. Now, you may be able to draw this connection. All I am saying is it seems to me there is a question.

MR MERKEL: There is a very direct connection, your Honour, and it is this. The data matching and the RMANS system, which is addressed, concerning enrolment, at 1266 and 1277 – and I will take your Honours to that in a moment – at the “Close of Rolls”, 4.2, is further material about what happens concerning the closure of the rolls. That is 4.2, 4.2.4, 4.3 and then going to 4.4 of the continuous roll update. Can I answer your Honour Justice Hayne’s question? What has happened is the computerised implementation of the matching of addresses through the RMANS and the CRU processes has had this consequence.

It has resulted in – and I can take your Honour to the numbers shortly – substantial removals of the roll of people who have changed their address and have their address records not consistent with the roll. That imposes results in an objection process by which the Electoral Commission under, I think it is, section 114 of the Act is required to take objection to the enrolment and give notice of it – that is section 114(4) – and then under 118(4A), must remove the elector’s name from the roll. The data matching all has the consequence, if not adequately explained or resulting in a transferred address, of roll removal.

What we say, your Honours, a substantial number of the enrolment transactions after the issue of the writs relate to persons whose names were removed, probably in most circumstances unbeknown to themselves, and the seven-day period gave them an opportunity to address that, being the period at which, the evidence establishes, people then turn their minds to being registered for the election.

We would say the abrogation of seven days to three days is even more untenable given the processes that I have just addressed your Honours on are designed to enhance the integrity of the roll by making it more accurate and more complete. So if there is going to be a removal process, it offers all the more reason why there should be no abrogation of the period for correcting the removal, particularly in circumstances where people may not have known it because if they changed their address they may not have received notice. So we say what justification can there be put forward, given the objective of integrity, where the processes for accuracy result in removal, the denying the people, the citizens who have been removed, the opportunity to address their removal so they can exercise the franchise.

HAYNE J: Do you dispute the third sentence in paragraph 20 of the Commonwealth’s submissions to the effect that the process of objection under Part IX of the Act is effectively unavailable after the issue of the writs?

MR MERKEL: I think that would be correct, your Honour, that the process of objection is unavailable in that sense, but that is because of the rolls being conclusive evidence and there is not to be any conduct of the Electoral Commission between the issue of the writs and the date of the election which will change those rolls by removal, say, for correction in special circumstances. So what has happened with the group we are talking of is their names were removed and they have the opportunity, subject to the seven-day period, to re-enrol.

HAYNE J: The point to which I am seeking to direct attention – forgive me for labouring it – is that data matching for the avoidance of fraud wears one face in the intervening period between elections. Does it wear another face? Is it capable of engagement, effectively - once an election has been called you have late claims coming in and the rolls have that conclusive aspect that is mentioned in paragraph 20 of the Commonwealth’s submissions. Those are questions. If they are irrelevant, tell me so.

MR MERKEL: Your Honour, can I consider the legislative regime in response to your Honour over the adjournment, but the evidence is that the same rigour has been exercised by the Commission, pre and post enrolment. The election period requires people to identify their address and give certain information when they turn up to vote. There is quite a complexity about what can and cannot occur in the election period, but that the rolls are conclusive as at the date of closure for the purpose of the election is the basis upon which we challenge the reasonableness of narrowing the period to correct the rolls to make them accurate and to maintain their integrity. We use the removals as an example of a person that is excluded, and for no good reason, by reason of the abrogation of the seven-day period.

GUMMOW J: A possible point of view is that if you, on your side, can make out a practical operation of barring the exercise of the franchise by a significant number of electors it is then for the Commonwealth, I suppose, to balance that out by showing a countervailing necessity to deal with other relevant matters to the effective exercise of the franchise and it may be the Commonwealth is seeking to do this by its reference to prophylaxis in paragraph 66. The question is, is the notion of prophylaxis enough, without being given some indication of practical outcomes?

MR MERKEL: We say, your Honour, it must have some objective basis in evidence to justify the allegations to what it is prophylactic against and why the abrogation of the seven-day period is relevant to prophylactic treatment as opposed to the pre-closure period. If there is no suggestion of any different rigor applied by the Electoral Commission in the evidence agreed facts as the same rigor as applied and there is no evidence that suggests that that seven-day period has been misused and, indeed, the evidence is to the opposite that marginal seats did not experience any higher rate of transactions in the close of roll period than it would have or did in respect of other seats in that period and in the earlier period, it has been prophylactic against a problem that does not exist because there is no suggestion it does exist.

GUMMOW J: In that regard it might be worthwhile to take the opportunity to have a look at Justice Isaacs at page 459 in Kean v Kerby.

MR MERKEL: Yes, thank you, your Honour.

FRENCH CJ: Yes, all right. The Court will adjourn until 2 o’clock.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.06 PM:

FRENCH CJ: Yes, Mr Merkel.

MR MERKEL: If I can inform the Court, my learned friend and I will endeavour after Court to prepare a written document to clarify the paragraphs that we are reading to the Court which are agreed facts and which are not agreed but statements of opinion or viewpoint. We will give that to your Honours hopefully after Court today.

FRENCH CJ: Are you going to be able to identify those agreed as you refer to them?

MR MERKEL: Yes. No, I am sorry, we have not agreed yet, your Honour, but we will do it after Court. It has not been possible to reach agreement, but I do not anticipate a problem in that regard. I should indicate to your Honours that we are – I will take your Honours to the passages upon which we rely. Insofar as they are Electoral Commission or Audit Office information given to the Parliament, we say that it is given pursuant to a statutory function and Parliament can reasonably rely on that material and it becomes relevant to identifying the mischief that was sought to be addressed by the 2006 amendments.

This is the material before Parliament that it had in respect of the absence of the mischief. It then becomes incumbent upon my learned friend or the Commonwealth, we say, to point to some mischief that was being addressed by the 2006 amendments. The substance of the material we are putting is that Parliament were informed, pursuant to a statutory function of the Electoral Commission and also the National Audit reports, that the integrity of the electoral rolls was very high and there was no perceived problem. So when Parliament addresses a problem, it is a matter for the Court to determine objectively what it was addressing and whether the seven-day abrogation had any relevance whatsoever to what is said to have been addressed. In that context, can I take your - - -

FRENCH CJ: That does not require any judgment about the correctness of the assessments of it.

MR MERKEL: Correct, your Honour. Can I take your Honours just to some of that material, firstly, at volume 4, 1493. This was a view consistently being put by the Electoral Commission, at 12.2.5, to the committee:

The AEC is concerned about the emphasis the June 2000 JSCEM Report has placed on the lack of field checking during the close of rolls, and the potential enrolment inaccuracies that might result. These perceived problems have not been properly balanced by an acknowledgment that the RMANS enhancements and the related CRU developments have improved, and will improve further, the overall accuracy of the rolls in advance of the close of the rolls, and that the AEC has no evidence that any substantial attempts at enrolment fraud during the close of rolls period have been made in the past.

Expert opinion within the AEC is that the early close of rolls will not improve the accuracy of the rolls for an election, simply because the need for field checking or any other kind of checking will be eliminated, or because the potential for enrolment fraud has been closed off. In fact, the expectation is that the rolls for the election will be less accurate, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received. This expected outcome is in direct conflict with the stated policy intention of the Government to improve the accuracy of the rolls. Further, it will undoubtedly have a negative impact on the franchise, an outcome which the AEC cannot support.

If the accuracy of the rolls decreases as the result of the early close of rolls, then a rise in the level of declaration voting could be expected, with consequential delays in the provision of election results.

Of particular concern is the possible impact of early close of the rolls on young people who wish to take up their franchise for the first time but are usually only motivated to do so by the announcement of an election.

The early close of rolls for federal elections would place the federal electoral system out of line with some State and Territory close of rolls –

Then could I go next to the AEC report at volume 5 at 1569 to 1570. It sets out the new enrolment figures at 1569 and 1570 showing that the close of roll transactions effectively, for the large part, affect the younger voters most in those age groups.

HAYNE J: Can you state in the form of a single sentence proposition why it matters that it is the young who are affected?

MR MERKEL: Your Honour, I endeavoured to do it earlier. At our first level of argument it is the substantial exclusion of large numbers of adult citizens otherwise entitled to vote. At a second level, if it is said against us, as it has been, that the legislation is blind as to who it affects in its legal operation, what we say in response to that is the practical operation has a consequence of largely affecting younger groups of voters disproportionately. So while the legal operation may be neutral as to who is affected, the practical operation of it is not.

FRENCH CJ: What additional constitutional principle is invoked to make that relevant that is not invoked in relation to the impact on adults?

MR MERKEL: Your Honour, we do not say any. It is a fallback, if it be relevant in response to - - -

FRENCH CJ: Fallback to what constitutional proposition, though?

MR MERKEL: Your Honour, that a legislative power that has a practical operation of having a disproportionate effect on a particular group of voters to disenfranchise a particular group then gets analogous to a practical consequence of exclusion of a group by status, such as prisoners. For example, when we dealt with the Roach Case there were some 20,000 prisoners disenfranchised, of whom probably less than 10 were in the under three category. We say that the practical consequences are relevant for the Court’s consideration if we fall because the legislation is neutral in its effect.

CRENNAN J: At a more general level, I suppose you could say that the idea of democracy changes over time and the current idea, the contemporary idea in our political culture, is that our participatory democracy since 1973 has included 18-year olds.

MR MERKEL: Yes, your Honour.

CRENNAN J: That is one general answer that at a general level gives some relevance to considering the position of 18-year olds in the context of legislative provisions otherwise in the Act which encourage participation, encourage enrolment.

MR MERKEL: Yes, your Honour. We would, with respect, say that. It is also relevant, your Honour, that there is a reason said to be put forward for justifying the abrogation of the seven-day period. If it were directed at some particular group and the remedy related to that group one might understand it having some sense. But I do not wish to take it any further than I have, your Honours.

Just on what your Honour has just put to me, in our articles, your Honour, there is an article which I will not take your Honours to, but I will just cite it. It is “From Deficit to Disenfranchisement: Reframing Youth Electoral Participation” by Dr Kathy Edwards. It is in the Journal of Youth Studies, volume 10, No 5, November 2007 at page 539, but at page 548 the author refers to the structural barriers that this early closure of the rolls produces for young people. We say that is consistent with our argument that this does have a structural barrier kind of effect.

Could I move to the next aspect. We have tried to demonstrate the practical effect of the abrogation of the seven-day period. Can we now go to the material on which we rely for answering the question, is there a substantial reason for the exclusion? Could I start off briefly by going to the document we handed up to your Honours this morning, which is the Electoral Commission’s submission in January of this year to the Parliamentary Committee. I wanted to go to paragraph 2.7 for a very particular purpose which has got nothing to do with the debate about proscribe whether this can be relied upon.

What the AEC has done at paragraph 2.7 is set out what it regards as falling under the umbrella of electoral roll integrity. The one thing that is common ground between the parties is electoral roll integrity is a legitimate object of any legislative prescription for enrolling and any other means of achieving an expression of the choice of the people. There are five headings of electoral roll integrity. The first is:

Entitlement – the individual meets all legislative qualifications for enrolment on the electoral roll, information provided by the individual is tested to detect and prevent enrolment fraud;

Accuracy – the individual is enrolled for the address at which they are entitled;

Completeness – all individuals who are entitled to enrolment are enrolled;

Processing correctness – information provided by individuals and organisations is entered correctly and completely on the roll, addresses are correctly and completely described, classified and aligned –

and security is not presently relevant. In that context, can we take your Honours - and what we will say, just so your Honours know where I am heading, is the seven-day abrogation offers nothing on the evidence before this Court to assist under any of those four headings. It is in diminution of entitlement. It does not assist and is contrary, inconsistent with accuracy because it prevents it. It encourages incompleteness because it does not allow the roll to properly reflect the people entitled to vote at the election by reason of the exclusion and it prevents processing correctness in that seven-day period because processing has been brought back to an earlier period.

FRENCH CJ: Now, in the material to which you took us a little earlier where there is reference to the submission, I think, the submission of the AEC to the parliamentary committee prior to the amendment, I understood you to be referring to that to indicate not the correctness of what was being said but rather what was being put to the committee by the AEC. Now, you are seeking to use this document for some different purpose, obviously?

MR MERKEL: Your Honour, what I wanted to say is that this is the AEC’s view, that we adopt, with respect, what can properly fall under the umbrella of integrity of the roll for the purpose of giving effect to the choice of the people.

FRENCH CJ: Yes, I understand that.

MR MERKEL: We do not need your Honours to say that this – because the AEC said it, it has significance, but it encapsulates what we say are the undoubted objectives of a means to an end. While on that point, can I briefly revert back to what your Honour Justice Gummow had put to me this morning Kean v Kerby and also Judd v McKeon. In Judd v McKeon (1926) 38 CLR at page 385 Justice Isaacs had said:

The community organized, being seised of the subject matter of parliamentary elections and finding no express restrictions in the Constitution, may properly do all it thinks necessary to make elections as expressive of the will of the community as they possibly can be. The word “choose” in this connection is the time-honoured expression for the election of a parliamentary representative.

GUMMOW J: Those views of Sir Isaac Isaacs reflect 19th century views of people like Mill as to the significance of the franchise and the participation in the legislative process of the people and that the methods adopted to bring that about by election have to be adapted to that end.

MR MERKEL: Yes, your Honour, and we say that they are encapsulated by “chosen by the people” in our Constitution. I was then going to advance to the limitations on that which might be expressive of the will of the community on election day or at the date the franchise is exercised to go to what Justice Isaacs said in Kean v Kerby 27 CLR at 459 in the middle of the page where his Honour said in respect of the question of the ballot as a means of expressing that rule:

The essential point to bear in mind in this connection is that the ballot itself is only a means to an end, and not the end itself. It is a method adopted in order to guard the franchise against external influences, and the end aimed at is the free election of a representative by a majority of those entitled to vote. Secrecy is provided to guard that freedom of election . . . The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it. When a vote is recorded in writing, no doubt the writing itself is the proper evidence of the way the elector intended to vote.

At least one aspect of his Honour’s concern is the secrecy guarding the freedom of the election. Why we see this is relevant to the question of integrity is the integrity of the roll is the means by which the free expression of the will of people is achieved and when one looks at the objectives set out in paragraph 2.7, any means that seeks to achieve a roll that records, entitlement, accuracy, completeness and processing correctness is a means directed at the end. But a roll and an enrolment process that is about disentitlement, inaccuracy, incomplete roll and not assisting processing correctness is antithetical to the end and cannot be employed as a legitimate means towards achieving it. We say that is precisely what the abrogation of the seven-day period has produced.

I will not delay your Honours on it, but we will be seeking to rely upon the declining electoral participation referred to in this report. At paragraph 2.10:

One element of roll integrity (as defined above) which is becoming increasingly difficult for all electoral authorities to maintain, and which threatens to undermine the confidence of stakeholders, is roll completeness. Electoral roll completeness appears to be increasingly compromised by a sustained trend of decline in the proportion of eligible citizens who are enrolled and/or who maintain heir electoral enrolments.

Then at figure 2.1 over the page is the “Number of enrolled electors and estimated eligible enrolled population” showing those that are missing, up to 1.4 million at the present time and, of course, one asks rhetorically, why erect a further barrier to their registration or enrolment? Then at 2.14:

The significant downward trend in the percentage of enrolled electors as a proportion of the eligible population since the 2007 election is evident in Figure 2.1 above, and has occurred despite routine enrolment stimulation and roll maintenance activities undertaken in this period.

FRENCH CJ: If it was invalid in 2006, it has not become more invalid today because the numbers have changed.

MR MERKEL: No, your Honour.

FRENCH CJ: How does it help?

MR MERKEL: Your Honour, because it shows that what the Act and what the Commission are seeking to achieve is a process by which participation increases and is enhanced. Any blockage of that is antithetical to the object of participation, but we do not put it any further than that. The only other matter I wanted to take your Honours to is 2.2 which shows the spike in elections of enrolments. What it says at 2.17:

As can be seen above, although federal elections usually generate increases in enrolment (and a corresponding fall in electors not on the roll), this effect does not consistently translate into ongoing enrolment growth.

Then the AEC presents a view about enrolment processes at 2.18 which is antithetical to a prescriptive approach to legislation such as that that we saw in the 2006 amendments.

Could I next go to what is agreed in that context in terms of facts at page 88 in volume 1. Sorry, there is one other reference I would seek to give to your Honours but without reading it. Annexure U at volume 4, 1151 to 1152 is a report by the National Audit Office as to the high integrity of the electoral roll. I should take your Honours to it, committed to read it. It is volume 4, 1151 to 1152, paragraph 3.67. No, sorry, I will have to check that reference, if your Honours please. I will not take your Honours to it now. Can we go back to volume 1 at the agreed facts, page 88:

3. The AEC processes, and has at all relevant times processed, enrolment transactions throughout each year except when consideration of claims received after the close of the rolls is prohibited. In processing an enrolment transaction, the AEC checks every component of the claim for any anomalies and to ensure that it complies with the provisions of the Commonwealth Electoral Act 1918 (the Act), prior to processing the form and then entering or removing the elector’s name from the roll. The AEC’s practice is to follow this process in respect of all enrolment transactions except when it is prohibited from doing so.
   
4. An elector’s details are not added to, nor amended on, the roll if the Divisional Returning Officer has reason to believe that the enrolment form is not in order or if the Divisional Returning Officer is not satisfied as to the elector’s entitlement to electoral enrolment.
   
5. Enrolment transactions, including new claims for enrolment, do not result in a change to the roll until verification of the form of the transaction is completed. Where an addition or a change to an elector’s details on the roll occurs after the settling of the Certified List of Voters, the AEC endeavours to advise the elector to complete a declaration vote at a polling place as their name will not appear on the Certified List of Voters.
   
6. The AEC makes every reasonable attempt to contact an elector before a claim is processed where the Divisional Returning Officer has doubt as to the eligibility of the person to be enrolled.
   
7. The AEC considers criteria such as name, address, date of birth, citizenship, prior enrolment history and signatures prior to processing an enrolment claim. The verification of eligibility checking may include any of the following checks - - -
   

FRENCH CJ: We have read all these facts, perhaps you can - - -

MR MERKEL: What we want to say, your Honour, in paragraph 8 is that this procedure, which is maintaining and enhancing the integrity of the roll, applies at all times and the real thrust of our submission is that any suggestion that the seven-day period causes any dislocation in terms of the integrity of the process is not sustainable as a matter of fact and that no enhancement of integrity of any kind is achieved by abrogating the seven-day period on the material in these agreed facts.

HAYNE J: In addition to these processes that are disclosed here, the Act provides in Part IX, does it not, two objections to enrolment?

MR MERKEL: I think they do not operate, your Honour, during the election period as the proper construction.

HAYNE J: That is right. Part IX marches in step with the other provisions concerning receipt of claims to new enrolment, does it not?

MR MERKEL: Yes, your Honour.

HAYNE J: And a person’s name may not be removed pursuant to objection after the time fixed, presently 8.00 pm on the day of the writs, previously seven days after the writs, pursuant to the objection procedure made.

MR MERKEL: That is my understanding of it, your Honour.

HAYNE J: So the effect of enrolment and when considered in the light of the objection procedure, together with the provisions for appeal against and review of decisions on objection, is that a line is drawn at some point on new enrolments, is that right?

MR MERKEL: Yes, your Honour.

HAYNE J: And although you say that the drawing of a line at a particular point is not justified on grounds of maintenance of integrity, what happens when the line is drawn, whenever it is drawn, is that the process of objection cannot be availed of in respect of the election that is about to occur, is that right?

MR MERKEL: Yes, your Honour.

HAYNE J: And it is the roll, as settled, with names neither being added nor removed under objection procedures, which then must be dealt with in the fashion described in the Act, such, for example, as copies given to every candidate and copies distributed, etcetera, is that right?

MR MERKEL: Yes, your Honour. There are some limited exceptions, as I understand it, but - - -

HAYNE J: I think those of unsound mind are treated specially in the objection processes, but the general rule is no name added, no name removed after that date, is that right?

MR MERKEL: The conclusiveness of the roll is the underlying principle, as I understand it.

HAYNE J: Just so. So that you go to an election with a conclusive roll, do you not?

MR MERKEL: That is the objective sought to be achieved by these provisions.

HAYNE J: And a conclusive roll which, for example, is made available to every candidate?

MR MERKEL: Yes, that is right, your Honour. -

HAYNE J: And you do not challenge the previous system which drew the line at a point differently from that under the Act as it now stands.

MR MERKEL: I think there is a provision against removal, but there can be additions, your Honour. I think, for example, what is proposed in the present case is - - -

HAYNE J: I do not think there can be additions. There can be transfers within the rolls, perhaps, under the current scheme but under the former scheme, I think, at close of rolls, that was it. I may be wrong, but I think at that point it was finished.

MR MERKEL: I thought, your Honour, for example, under 105(4) and the procedure for error – for example, in the present case the plaintiffs are not on the rolls – there is no impediment to them – if they were incorrectly not enrolled, there is no problem about them being enrolled for this election and voting and having their vote counted. They can be added to the roll.

HAYNE J: That is not the point I am concerned to have you look at. Implicit in your submission – indeed, express in your submission – is the proposition that a line can be drawn. Is that right?

MR MERKEL: Yes, your Honour. We do not have any quarrel with that.

HAYNE J: You say that the line should be drawn at day seven, not day one because those who have not previously enrolled will be sparked by the announcement of the election which may coincide with issue of the writ.

MR MERKEL: I would rather it were put slightly differently, your Honour. The process which was abrogated was a seven-day process. We have no quibble with that. It was the abrogation of that that we have our quarrel with. That is how we put it, your Honour. We do not want to say this is an argument between what is more efficacious between one and seven days. Our real argument is that the seven-day abrogation has had a very substantial and practical impact on the objective - - -

HAYNE J: I understand that as a piece of forensic debate, but the premise implicit in your argument is, and it seems to me, must be, correct me if I am wrong, that a line can be drawn.

MR MERKEL: Yes, your Honour, but that line must be drawn to secure the objective ultimately. That is a means by which the ultimate objective is - - -

HAYNE J: Exactly so.

MR MERKEL: And it must be not disproportionate and there must a proper basis for it.

HAYNE J: The hinge about which the argument turns is that the means chosen must accommodate the fact that there are those - you add as a piece of forensic colour, chiefly the young - who will be sparked to act only by the fact of announcement of election.

MR MERKEL: I would say experience is that that is, in fact, what happens and a structural impediment has been erected to prevent that or impede it for no reason of any substance. It may be that it comes down to means and ends, your Honour, which I do not need to go back to. But we say ultimately the question is why was the seven-day period abrogated? It is to that which I am seeking to address, your Honours.

KIEFEL J: Why is that the appropriate question?

MR MERKEL: Because, your Honour, it was the abrogation of the seven-day period that has had the substantial exclusionary effect which we have been addressing your Honours on since this morning.

KIEFEL J: Are you implying some dark motive or are we still in the land of constitutional principle?

MR MERKEL: Purely as a constitutional principle, your Honour. We rely on the Roach Case to say there has been an exclusion and the question is, is it for a substantial reason?

KIEFEL J: I wonder whether the questions in Roach are really the correct way of approaching this. Roach was concerned with the disqualification arbitrarily, it was found, of a group of people from voting. This is about the choice of a means in which the electoral rolls are dealt with. I do not think you would deny that a purpose, putting aside qualitative assessments, of the provisions in Part VIII, including the ones in question, are the integrity of the roll and that a purpose is the orderly transition of the roll for the purposes of the election, the closing of the roll and dealing with it. Would you go that far to say that they are a purpose – each of them?

MR MERKEL: I do take umbrage at the word “orderly”, your Honour, mainly because - - -

KIEFEL J: Well, efficient.

MR MERKEL: I have accepted unequivocally that any objective that seeks to achieve integrity of the roll for the purpose of the election and doing what is reasonably adapted and proportionate to that purpose is certainly a basis.

KIEFEL J: I am not asking whether you cavil factually at the level of necessity. I am asking you at the first level, do you accept that those are purposes, statutory purposes, that might be attributed to Part VIII and the provisions in question?

MR MERKEL: Yes, your Honour. We do not have any problem with the proposition that a purpose, such as we find in Part VIII, as long as it is serving the objective of giving the expression of the people.

KIEFEL J: If that is the case, is the correct question whether or not there is also shown to be a reason and, added to that, a substantial reason, or are you in the area in relation to proportionality of testing purposes by other strict requirements, such as necessity?

MR MERKEL: Your Honour, that is a difficult question. We say that we must view this objectively and objectively understood by reference to the historical experience, the impugned provisions cannot objectively be determined to have the purpose that would be of serving the end that we have identified.

KIEFEL J: You cannot say that there is no need at all, given the purposes identified. What I think you say in the end is that these measures go too far when you say that they are disproportionate and that there is a qualitative assessment involved in this, is there not?

MR MERKEL: Your Honour, what we do not say is that this all comes down to questions of degree. There must be a qualitative viewpoint when one uses words that we do use, that this is an arbitrary limitation or there is no justification put forward on any objective basis for this limitation. What we do say is that a margin for appreciation argument may operate in respect of election day down to the seven-day period, but the abrogation of the seven-day period having the consequences that it does we say is properly measured by the principles in Roach. We do not see any distinction between Roach and the present case merely because a different means is produced for the same consequence, which is disenfranchisement. If anything, the Roach test should be all the more rigorously applied because of the nature and extent of the disentitlement or exclusion that operates in this case.

KIEFEL J: I am just wondering whether or not the comparison should be between the effect that the provisions have and the objects that they were intended – or the purposes we have identified that they were intended to secure. That is really the area that you are in rather than asking the question which was more appropriate in Roach about whether any substantial reason was shown, it being on its face an arbitrary provision. I just wonder whether we are in different territory here and whether you should be looking at the effect, having regard to the statutory purposes.

MR MERKEL: We say, your Honour, merely having a statutory purpose of a means to achieve an end cannot answer the constitutional validity of whether that is disproportionate.

KIEFEL J: But I think this is one aspect of proportionality to approach it in this way.

CRENNAN J: Because the statutory purpose could be said to reflect a public interest in electoral rolls which are as fraud free as possible. That is a public interest, I take it, you would not deny. But you are seeking to balance that in the context, I think, of a proportionality argument against the constitutional requirements of maximum participation of the people, as per sections 7 and 24. Is that not the area you are in?

MR MERKEL: There are two levels at which we say one can approach it, your Honour. We say that the Roach approach is correct because it is looking at the substantive consequences which are exclusionary and one asks is there a substantial reason for it. It does not give Parliament the margin of appreciation to say if it is under the broad umbrella of a purpose, we cannot really consider that because it is within Parliament’s margin. It is not within Parliament’s margin to diminish the right of choice of the people, if the means chosen is disproportionate.

We say Roach makes that point and Roach should not be looked at as purely a status case because it would be an odd result that a status that affected probably in practice, some 10,000 people, can have that test, but a means to achieve that end of choice of the people is not measured by a justifiable basis for diminishing the people who have the right to choose, or who have the franchise. We do, at the lower level, if it be a purposive approach, we say viewed objectively these provisions cannot be seen to have that purpose because they do not bear – objectively assessed they do not bear the relationship necessary.

KIEFEL J: That is not strictly a view of proportionality, is it?

MR MERKEL: No, it is - - -

KIEFEL J: That is no purpose. That is no legitimate purpose. Full stop. You go that far.

MR MERKEL: We go that far. We have no hesitation in going that far, but we put it on the Roach test - - -

KIEFEL J: What are the premises that lead us to that conclusion then?

MR MERKEL: The premise is because, your Honour, there is nothing on what I will call the evidentiary basis or the objective basis of assessing the material before the Court or the material before Parliament, however it is put, that could say the abrogation of the seven-day period was achieving of any purpose of the kind your Honour has put as falling within legitimacy, any more than if they closed the rolls six months earlier by some other arbitrary date.

FRENCH CJ: This is a law, as I think Justice Hayne put to you earlier, made under section 51(xxxvi) by reference to section 31 of the Constitution. If there be a principle informing that legislative power that it is to be directed to maximising the opportunities for the exercise of the franchise and that it would be a corollary of such a principle that a law made under section 51(xxxvi) would impede or bar the exercise of the franchise only to the extent necessary to ensure such things, for example, as the integrity of the roll – that is to say to ensure that the choice is, so far as practicable, one made directly by the people, it is all under the same overarching objective.

I am having regard to, in this context of course, the passage that was read to you earlier by Justice Gummow and therefore something attracting a kind of strict scrutiny approach to a law which has the effect of impeding the exercise of franchise. I mean, all the practical arguments that you have put – all the practical effects arguments and the question of need – would all fit within that rubric. I find difficulty fitting them into the rubric of disqualification, which was really at issue in Roach, a section 30 question.

MR MERKEL: Except for this, your Honour. I mean, as the Court pointed out in Roach, qualification and disqualification are reverse sides of the same coin.

FRENCH CJ: But this is not a disqualification. The people remain qualified. They are just not entitled to vote because they are not on the roll.

MR MERKEL: I think in Roach they were on the roll and they were not entitled to vote but, your Honour, one could have the same problem here. This is a qualification problem. A prisoner could - - -

FRENCH CJ: Why do you have to go into that territory?

MR MERKEL: We only go there, your Honour, because we say that the exclusion at the first level must have a substantial reason, if it be a purposive provision. We say it must have a purpose which is objectively identified as giving effect to the expression of the people and that this, the impugned provision, simply do not have that purpose.

GUMMOW J: Just stopping there for a minute. What the Chief Justice suggested to you respecting strict scrutiny, which I think you embraced, may have some impact on what otherwise would be a simple proportionality argument. It may skew that, as it were, in your favour, if you see what I mean.

MR MERKEL: Yes, we certainly have no hesitation in saying that, your Honour, but we say that whether Roach be distinguished or not, Roach was based on the bedrock of sections 7 and 24 and we say they constrained section 31 as much as section 30.

HAYNE J: There is no doubt they do, but then comes the question about the content of 7 and 24. Do you say they connote, as was put to you in the course of this passage and debate, maximum participation by the people or do they simply connote maximum franchise? Let me tell you what the consequence of acceptance of the first is. If they connote maximum participation, it seems to me that compulsory voting was not simply lawful, it was constitutionally required because maximum participation was achieved through compulsory voting. I can understand 7 and 24 connoting maximum franchise, universality as close as possible of franchise, but universality of participation, do you go that far?

MR MERKEL: We say we do not need to go that far, your Honour. We say that what our case is about is not about maximum participation. We go no higher and need go no higher than when chosen by the people has legislative restriction of the opportunity to choose, that should be subjected, as his Honour Justice Gummow put to me, by strict scrutiny when it is limited. We do not have to go to the next level above and say there is an obligation to look at maximum participation. It is the deprivation of the opportunity. If people do not wish to take it by not enrolling, that forms no part of our case. We only seek to protect the rights of those who wish to enrol and would enrol within the seven-day period.

What happens to others is not part of the case we are putting forward. As I said at the outset, this case is about those who wish to exercise the franchise, it is not about those who do not. That is why the plaintiffs are in that category and 100,000 other people that initially we were starting off as a representative action but is no longer necessary to continue, were all in that category and they have been excluded and we say that exclusion should be subjected to a strict scrutiny.

FRENCH CJ: So it is maximum opportunity to participate?

MR MERKEL: Well, an opportunity that is taken away, your Honour, for either good reason or for a purpose that survives a strict scrutiny test and we say that objectively viewed this law does not survive either test, whether it be a substantial reason or a strict scrutiny of the purpose.

CRENNAN J: You would say it reduces the people for the purposes of an election?

MR MERKEL: Yes, your Honour. Yes, and we say it reduces it in a very substantive way, which is apparent from the material we have taken your Honours to. Can I just take your Honours to that National Audit Report for which I had wrong reference? Sorry, I want to give your Honours some references, which I will not take your Honours to, about absence of any evidence before the Parliament of systematic, systemic or significant fraud, and I will give your Honours the references. In 1998 at volume 2 at page 550 – these are in AEC reports to Parliament – in 1990 to 2000 that is over the 10-year period, at volume 4 at page 1470 to 1473, in 2001 at volume 4 at page 1551 and in 2004, volume 5 at page 2036. Can I just take your Honours briefly to the report of the National Audit Office in volume 3 at page 874?

FRENCH CJ: Which page was that?

MR MERKEL: Page 874, your Honour, and this is the electoral roll report 18 April 2002:

13. The ANAO concluded that, overall, the Australian electoral roll is one of high integrity, and that it can be relied on for electoral purposes.

14. We concluded that the AEC is managing the electoral roll effectively. AEC policies and procedures can provide an electoral roll that is accurate, complete, valid and secure. In particular, the AEC has mechanisms in place to provide assurance that the names and addresses on the electoral roll are legitimate and valid; and that people who are eligible to vote are registered properly.

. . .

Accuracy

16. The audit found that, while the AEC does not set a target for accuracy of the roll, its CRU program is primarily focused on ensuring the accuracy of existing enrolments. Data-matching by the ANAO of the names and dates of birth of individuals on the roll indicated that over 96 per cent were accurate.

. . .

20. ANAO independent data-matching of the electoral roll indicated that, of the enrolments matched to Medicare data, over 99 per cent appeared to be valid.
    

That, together with the evidence which we have indicated to your Honours about technological change, indicates that in 2006 and at present there was simply nothing before the Parliament or nothing pointed to in my learned friend’s submissions viewed objectively, whether it be viewed as a test of substantial reason or strict scrutiny of purpose, that could justify the abrogation of the seven-day period.

Indeed, in our learned friend’s submissions when he referred to the prophylactic approach there are two fundamental factors undermining of it. Objectively viewed, he has not been able to identify what it was that the prophylactic cure was being addressed to remedy but more importantly there is simply no basis for concluding that the elimination of the seven-day period for new enrolments or its reduction to three days for transfers was going to be prophylactic, even if there was a purpose or a reason. In other words, what could have been done before the issue of the writs could equally be done after or what could be done after could be done before, so it was not really addressing a problem.

Ultimately, what we say is the fundamental flaw in this process which we have endeavoured to capture in our reply submissions is that it is a conferral of a power of disenfranchisement on the executive arm of government according to a decision which it can make for political motivations or purposes and the disenfranchisement, exclusion or disentitlement of adult citizens should not be made by Parliament to depend on that power and if it is it must survive, on our primary case, a substantial reason test, which it does not, or a strict scrutiny purposive test which it does not.

We say that such large numbers of adult citizens should not be excluded from the franchise on the basis of this exclusion. No second reading speech, no explanatory memorandum trying to say what the purpose of this was. The evidence shows it was a hotly contested issue from joint parliamentary committee to parliamentary committee. We say the purpose is illusory and we say should not survive the scrutiny of this Court because it opens a potential floodgate for other means to be chosen that have similar disenfranchising effects and that is why we say this is a case of quite fundamental importance for the franchise.

Roach may be important on status but this is equally important on the question of the means to achieve an end of disenfranchisement. For those reasons we say the relief that we seek should be granted. The Electoral Commission in the Commonwealth’s submissions do not challenge the efficacy of the relief that we have sought.

FRENCH CJ: Do you seek a mandamus for a direction to the relevant divisional officers?

MR MERKEL: We do, your Honour, although we say the essential relief is the declaratory relief. We have no reason to doubt the Electoral Commission, given what has been said would give effect to declaratory relief in respect of the two plaintiffs. They are the submissions we wish to put, if your Honours please.

FRENCH CJ: Yes, thank you. Yes, Mr Solicitor.

MR GAGELER: Your Honours, it is the agreement of the parties that I should go next and your Honours have an index of my oral submissions. I will go straight to the first topic which is the source of power. The particular provisions challenged by the plaintiffs set a rather precise cut-off for enrolment within a statutory context, which I will come to in more detail, where enrolment is compulsory, section 101, where enrolment is a precondition to the statutory status of an elector as defined in section 4(1) and where the statutory status of elector brings with it an entitlement under section 93(2) and an obligation under section 245 to vote at an election for the House of Representatives or for the Senate.

It is, thereby, a law with respect to the qualification of electors within section 30, which is the subject matter of section 30 of the Constitution as picked up by section 8, but the provisions are equally laws with respect to elections, which is the subject matter of section 31 and section 10. It is as laws with the respect to elections that your Honours will recall the antecedent provision, section 45(a), was characterised by three members of the Court in Sipka 152 CLR 245 at 265. I do not ask your Honours to turn to it.

On both or, sufficiently, either of those bases and subject only to the constraint imposed by sections 7 and 24, the provisions in question are laws with respect to matters within the scope of section 51(xxxvi). Now, that is significant for two reasons. One is that it has been repeatedly said that section 51(xxxvi) is a subject matter power, not a purpose power and as a subject matter power – and I am here conscious of the ambiguity implicit in this word – but as a subject matter power, section 51(xxxvi) in its application to elections particularly has been described as a plenary power.

GUMMOW J: Where does this word “plenary” come from? It usually upsets the Commonwealth when it is used by the States.

HAYNE J: It is always a term of abuse.

GUMMOW J: It seems to be one of the most mischievous epithets ever to find its way in to the Commonwealth Law Reports.

MR GAGELER: I knew your Honour would say it.

GUMMOW J: I know, but you were determined to press on.

MR GAGELER: I had an internal debate, that is a debate within my head, as to whether I would say it at all. Footnote 47 collects the cases and the origin in this context is the joint judgment in Judd v McKeon [1926] HCA 33; 38 CLR 380 at page 383. Your Honours were focusing on section 9 of the Constitution. It was Justice Brennan, I think, in Langer who used the same language in relation to section 51(xxxvi). If your Honours have Judd v McKeon to hand, your Honour Justice Gummow, this morning drew my learned friend’s attention to what was said by Justice Isaacs at page 385.

The point that we would make about Justice Isaac’s statement at that page is that a statement was made in support of the amplitude of the legislative power. His Honour was not and should not be interpreted as saying anything about restriction on power. That is the first thing we wanted to say about section 51(xxxvi). The second thing is this, that it has been said on a number of occasions, and said recently, that the introductory words of section 10, sections 30 and 31 that invoke section 51(xxxvi), that is the words “until the Parliament otherwise provides”, carry the significance that the subject matters of those sections were within the design of the Constitution committed to Parliament as matters of legislative choice with all the capacity that brings for legislative change, legislative innovation and, indeed, legislative trial and error.

Your Honour Justice Gummow in McGinty’s Case [1996] HCA 48; 186 CLR 140 made this point strongly at the bottom of page 280 in the paragraph beginning “Nevertheless” and at the top of page 281. Your Honour then at page 283, after noting some significant developments, particularly the introduction of compulsory enrolment in 1911 – something I will say more about – and compulsory voting in 1924, said:

There is considerable force in the recent statement by learned commentators:

“As numerous and as positive in expression as many of these [constitutional] provisions are, they constituted only the bare foundations of the electoral law for the representative Parliament of a new nation. The Constitution, for example, left unspecified, or open to change, a whole range of matters -

If your Honours look through those matters, included within them is the question of voluntary or compulsory registration of voters and of voting itself and the control of electoral rolls. Those same points, indeed the same passage quoted by your Honour was quoted with approval in Mulholland [2004] HCA 41; 220 CLR 181 at page 207, paragraph 65, in the judgment of Justice McHugh. I do not ask your Honours to turn to that. The same concept was referred to by your Honours Justices Gummow and Hayne at page 237, paragraph 155. The point that section 51(xxxvi) is a subject matter power, not a purpose power, was made by your Honours at pages 238 to 239, paragraph 159.

GUMMOW J: I think if you are looking at McGinty and you want to look at what I said you probably have to look at page 287, the first sentence in the first complete paragraph, which brings us to the sorts of questions I think Justice Kiefel was raising with you.

MR GAGELER: Yes. I was dealing first with power, I go next to the constraint on power that is imposed by sections 7 and 24. Can I say two things immediately. Our learned friend’s case is a case which is based on the application of Roach. We do not question the authority of Roach and we treat Roach as authority for the application to the core area of sections 7 and 24 of essentially the same two-stage test of validity, or invalidity, applied to the penumbra of sections 7 and 24 in accordance with the Court’s analysis in Lange, that is, one asks as a first question whether the law in its legal or its practical operation substantially burdens or impedes an entitlement to, or the exercise of, electoral choice by the people, which we accept is an expression now to be understood as encompassing adult Australian citizens, recognising the slight ambiguity and room for argument at the margins as to precisely who falls within that description.

At the second stage, it is then necessary to ask if the answer to the first question is yes, whether the burden or the impediment is explained as a proportionate response in the sense of a reasonably appropriate and adapted response to a constitutionally permissible end. As we understand it, when “substantial reason”, when that terminology is used in Roach, it was used as a shorthand expression for the test, as I have just stated it.

We make a number of observations about that two-stage test. As to the first question, it is a question which is necessarily one of degree. We have accepted that one needs to look at the factual, as well as the legal operation of the law. What one needs to look at ultimately is the impact of the law on the people as a group, of course, not as individuals, which was a point made in Roach. That point appears in the joint judgment in Roach at paragraph 86, and it was also a point made by Justice McHugh earlier in Langer [1996] HCA 43; 186 CLR 302 at pages 342 to 343.

The question of the impact on the people considered as a group ought not be confused or conflated, in our submission, with the subject matter of section 41, a provision now spent but which was concerned with the individual right to vote. We are concerned in this context with a broader notion of the franchise.

The second point about the first question is this, that applying the Roach, Lange first question, what we are necessarily looking for is some form of impediment or burden of a substantial kind. In Roach, of course, it amounted to a disqualification. My learned friend has used the language of “disenfranchisement”. Inapt, in our respectful submission, to describe what is going on here, but accurate to describe what one must find to get a positive answer to the first of the necessary questions. It is not sufficient, in our respectful submission, to suggest or even to demonstrate that there is or might be another electoral system or a variation of the current electoral system that would result in greater enfranchisement. As to the second question - - -

BELL J: Before you move to the second question, can I take up one aspect of your submissions dealing with Roach and with the first question. At paragraph 53 you accept, among other things:

where the legal or practical operation of a law is to create a “disqualification from what otherwise is adult suffrage” –

then in parenthesis you include –

(whether by disqualifying adult citizens from enrolling –

Now, you instance there the provisions of section 93(8) dealing with the removal from the role of certain categories of persons and, I suppose, that explains your use of the expression “disqualifying adult citizens from enrolling”, but I am wondering if you draw a distinction between the provisions of 93(8) and a legislative mechanism that operates to prevent persons otherwise eligible to vote from enrolling as with the provisions that are the subject of present contest and, if so, I mean, what is the basis if one is having regard to the practical operation of the law?

MR GAGELER: I am not drawing such a distinction.

BELL J: So, if you do not draw such a distinction, I have some difficulty reconciling your paragraph 56 with your paragraph 53.

MR GAGELER: Well, your Honour, I do not wish to keep you in suspense, but that is the topic that I propose to turn to a little further down - - -

BELL J: I am sorry, I thought you were moving to - - -

MR GAGELER: - - - in the index of my oral submissions, but I will certainly address that directly.

BELL J: All right.

MR GAGELER: Your Honours, if I can just deal with what we say as a matter of the law about the second question, there are six points that I wanted to make. The question is about the identification of ends and the degree of connection between means and ends. The first point is about the identification of ends and here there is, in our submission, a critical distinction, to some extent blurred in our learned friend’s written submissions, less so in his oral submissions, but it is an important distinction to bear in mind, between ends which are the objects or purpose of a law as revealed objectively by the legal and practical operation of the law in the context in which it was enacted, and the motives of the legislators which cannot be known and which, if known, would be constitutionally irrelevant. That was a point well made by your Honour Justice Hayne in Roach itself at paragraph 172 in dissent, but no worse for that.

HAYNE J: I am not sure that is right, Mr Solicitor. You can flatter one of us, but you have got to flatter all seven of us simultaneously.

MR GAGELER: I am working my way through the list, your Honour. We have, in the index for the oral submissions, given your Honours three other references along similar lines. The second point is that in the assessment of proportionality of the means to the ends, and whatever verbal formulation might be used, what emerges from Roach and particularly in the critical paragraph at paragraph 85 - 233 CLR 162 at 199, paragraph 85 - - -

GUMMOW J: This is the one set out in your paragraph 53?

MR GAGELER: It is and it is common ground that it captures the test at this second stage. What is proportional or what is reasonably appropriate and adapted to an end is not to be equated with what is essential or unavoidable. It is significant that the terms used by the majority in Roach to describe the exclusion held to be unconstitutional in that case, terms which express the lack of proportionality in an extreme way, the Chief Justice at page 182, paragraph 23 in the last word described the exclusion as “arbitrary” and the joint judgment at page 202, paragraph 94 described it as “capricious” – that is in the second-last line of paragraph 94.

The third point is really by way of explanation of the formulation of the test in Roach and of its application by use of that terminology is that, in our submission, any lesser test of proportionality in this field encounters the difficulty of reconciling in any principled way the constraint imposed by sections 7 and 24 with the amplitude and dynamic scope of the power conferred by section 51(xxxvi).

In that respect, the joint judgment in Roach at paragraph 45 in the context of the power repeats the essentially dynamic nature of the subject matter of the power conferred by section 51(xxxvi) and continuing my use of the dissents, if your Honours turn to page 224, in the dissent of your Honour Justice Heydon, but again expressing a point which in our submission accords with a principle and is not contradicted by the majority, your Honour gives, in our submission, appropriate content to the dynamic scope of section 51(xxxvi) and the reconciliation of it with sections 7 and 24. Your Honour says this in the third sentence:

Many think that one of the advantages of having a liberal democratic legislature, particularly when the legislators belong to political parties having different opinions on some issues, is its capacity to experiment, to test what does or does not work, to make up for unsatisfactory “advances” by carrying out prudent “retreats”.

Omitting one sentence your Honour says:

It would be surprising if the Australian Constitution operated so as to inhibit the capacity of the legislature, having changed the electoral laws in a particular way, to restore them to their earlier form if that change was found wanting in the light of experience.

GUMMOW J: What is the “light of experience” here that led to the amendments in 2006?

MR GAGELER: I will certainly come to that, your Honour, but I will come to it in an orderly way. The fourth point is to accept that the assessment of proportionality, in accordance with sections 7 and 24, being itself one to be addressed in a dynamic context may yield different answers to the question at different points in history depending on the totality of the context, including legislative developments that have occurred. We accept that but it is necessary, in our respectful submission, in this context to bring a particularly broad historical perspective not one that accommodates too readily changing and contestable judgments.

We point out that in Roach the provision held to be invalid was a departure from the consistent scheme of Commonwealth legislation which had been established since 1902. It also created an incongruity with section 44(ii) of the Constitution. Those two elements were significant in the reasoning of the majority. Both of those elements are absent in the present case. Indeed, the provisions with which we are concerned reinforce a scheme which, in its essential elements, has been there since 1902 and in some of the critical elements, since 1911.

The fifth point is that although it may be wrong to say that the test at this second stage of inquiry changes, one would expect a difference in the application of the test of proportionality between a case where there is an ex facie substantive disqualification of voters, the sort of case in Roach, and a case where there is in practice a disqualification of some voters resulting from a procedural requirement applicable to all voters, that is, if we were to translate this to first amendment speak or the sort of language which has been adopted in the Lange line of cases, we are here in the area of “time, place, manner” regulation.

We are not in the area of content regulation, and that distinction is a distinction which one can see in the judgment of Chief Justice Gleeson in Mulholland [2004] HCA 41; 220 CLR 181, particularly at paragraph 40. I mention that in particular because it is that discussion of Chief Justice Gleeson which is footnoted in Roach, in footnote 119, as explaining the content of the phrase “reasonably appropriate and adapted” and as making the point that it does not mean essential or unavoidable.

HAYNE J: Just to revert a moment to your analogy with “first amendment speak” as you described it and “time, face, manner”.

MR GAGELER: Yes.

HAYNE J: The use of terms like “disqualification” - - -

MR GAGELER: Yes.

HAYNE J: - - - leave aside disenfranchisement and the like, may tend to the obscuring of the element of time, which is critical in these cases.

MR GAGELER: Yes.

HAYNE J: The cases with which we are concerned are cases where people were entitled, indeed, were bound to do things. We are now talking about a cut-off of exercise not only of the entitlement, but performance of the obligation.

MR GAGELER: Yes. My use of the word “disqualification” assumed a certain answer to the first question.

HAYNE J: But there is disqualification at a time?

MR GAGELER: That is right.

HAYNE J: And the significance we attach to that disqualification must surely take account of what has preceded - - -

MR GAGELER: Exactly, yes. Your Honour is entirely right.

HAYNE J: - - - by way of both entitlement and obligation?

MR GAGELER: Yes. Your Honours, the final general point we wanted to make was one which concerned onus. The suggestion that perhaps emerged in argument this morning that if the first of the two questions is answered in the affirmative, then in respect of the second question establishing a proportionality between means and ends, the onus, it may have been suggested, moves to the defence. That, in our respectful submission, is not established by the authorities and is contrary to principle. We refer, in particular, to your Honour Justice Heydon’s analysis of this very point in Coleman v Power [2004] HCA 39; 220 CLR 1 at paragraph 329 and also - - -

HAYNE J: Sorry, what paragraphs?

MR GAGELER: Paragraph 329, and also to what your Honour said in Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at paragraphs 622 to 623.

GUMMOW J: What is the paragraph in Coleman v Power?

MR GAGELER: Paragraph 329, page 124.

GUMMOW J: That is the ultimate question. That is the ultimate onus.

MR GAGELER: Yes. There may be a persuasive onus that arises in the circumstances of a particular case, your Honour.

HEYDON J: I think you mean evidential.

MR GAGELER: Not an evidential onus, no.

HEYDON J: Well, if you bear the persuasive onus, that is worse for you than bearing an evidential onus.

MR GAGELER: It may be a question of terminology, your Honour.

HEYDON J: It is entirely a question of terminology if you are going to translate these words across from conventional fact-finding, however.

MR GAGELER: Yes. I should withdraw my answer to your Honour Justice Gummow’s question. We do not accept any onus.

KIEFEL J: As I understood Mr Merkel’s argument for the plaintiff, though, the question of onus only arose because there was said to be no ostensible legitimate purpose, if there is one to be objectively ascertained. I do not know whether that is part of the answer to it.

MR GAGELER: It is a question of first ascertaining the objective sought to be achieved by the legislation and then determining the connection between the means chosen by the legislation and the fulfilment of that objective.

KIEFEL J: Or, as some might say, the degree of connection.

MR GAGELER: The degree of connection, yes. But, ultimately, in any event, it is for him to establish a lack of connection rising to the level of arbitrariness or capriciousness, in our submission. Your Honours, can I go to the statutory context, which is the third topic in the outline. I do not propose to say anything about the colonial legislation which we have summarised in paragraphs 32 and 33 of our submissions save to ask your Honours to delete the last sentence of paragraph 33. We agree with the Western Australian written submission at paragraph 27 and the topic of colonial legislation is to be dealt with more completely and, in that respect, more accurately by Western Australia, and I will say no more about it.

I also propose to make only very limited reference to the earlier Commonwealth legislation which we have summarised in paragraphs 34 to 40. I want to go to the Act in its current form, that is reprint No 12, and what I want to get from it is essentially two things. I want to emphasise the centrality and inviolability of the rolls in the electoral process and I want to draw attention to the mechanisms that exist under the Act to require and to facilitate the orderly and continuous updating of the roll, essentially as an administrative process which is antecedent to the electoral process.

The starting point is section 82 at page 83 which requires, in subsection (1), that there “be a Roll for each Division”. Your Honours can ignore subsection (2) which applies only where subdivisions exist as created under section 79. Your Honours may have noted from our written submissions that there now are no subdivisions and in the absence of subdivisions, the effect of section 4(4) is where one sees subdivision in the Act, including in the provisions that our learned friends challenge, one reads “Division”. Those rolls for divisions are then accumulated in section 82(4) “together form the Roll for that State or Territory, as the case requires”, which then fulfils section 81. The form of the roll in section 83 is then to include the “names and place of living of each elector”.

We then go to section 93 which, in subsection (1), makes entitlement to enrolment subject to Part VIII, in subsection (2), through the definition of “elector” in section 4(1) makes entitlement to vote dependent on the fact of enrolment. Historically, the making of enrolment a qualification for participating as a voter in an election dates back from 1902. You can see that in section 3(c) of the Commonwealth Franchise Act. Your Honours do not have to look at it. We have given that to you in our materials, volume 1 relevantly at page 240. The separation of the entitlement to enrolment from the entitlement to vote, making the entitlement to vote consequent upon enrolment dates back at least to 1918. It is there in the original form of the 1918 Act – section 39. I will come back to Part VIII.

If I can go to the electoral process which begins with the issue of the writs, a process dealt with at page 168 of the print and following, the issue of the writs being by the Governor of a State under section 12 of the Constitution; by the Governor-General under section 32 of the Constitution or the Governor-General under section 151 of the Act. The form of the writs is set out in section 152. Your Honours will note from section 152(1) that the writ itself is to fix dates for the close of the rolls, the nomination, the polling and the return of the writ.

Each of those dates is then regulated by subsequent provisions, in the case of the close of the rolls by section 155, nomination 156, polling 157 and the return of the writ 160. If you add up the days what you will see is that polling has to occur a minimum of 33 days and a maximum of 58 days from the date of the issue of the writs. What is laid out in the scheme of the Act is a number of sequential, essentially cumulative steps consequent upon the issue of the writs, all of which assume the existence and substantial completeness of the roll from the beginning.

GUMMOW J: Why is that?

MR GAGELER: Pardon?

GUMMOW J: Why do they assume that?

MR GAGELER: If you go to section 166, which is the first step of nomination, you see section 166(1)(b)(i), this is page 173, and this is subject to exceptions, but essentially nomination, except in the case of a nomination signed by a registered officer of a registered political party, has to be signed by “not less than 50 persons entitled to vote at the election”, entitlement turning on enrolment. Polling then is the next step - - -

GUMMOW J: Wait a minute. What is the stipulated interval between “writ” and “nomination”?

MR GAGELER: “Writ” and “nomination”. It is dealt with in section 156.

GUMMOW J: Twenty seven days.

MR GAGELER: Up to 27 days, yes.

GUMMOW J: Less than 10 but more than 27.

MR GAGELER: Yes.

GUMMOW J: If the roll is closed within 10, there is no problem, is there?

MR GAGELER: It would still occur.

GUMMOW J: It does not mean the roll has to be closed within two hours.

MR GAGELER: I am not taking it that far. All I am saying is that there is an orderly process which assumes that the roll will be closed before any of these steps occur.

GUMMOW J: But one of the complaints against you is that this orderly process, which existed under this legislation before 2006, has been radically disrupted at one end whilst retaining the rather stately pace of the other stages.

MR GAGELER: I will certainly deal with that, your Honour, but first of all I need to establish the orderly process itself. You then go to polling which begins relevantly with section 208. Subsection (1) requires the Electoral Commissioner to prepare for each Division a certified list, as specified in subsection (2). Subsection (3) requires that to be delivered to the presiding officer at the polling place. Your Honours will note section 208A which allows for approved lists. If you look at the definition in section 4(1), that is simply a certified list in an electronic form.

If you then leave aside the detail of postal voting and of pre-polling, which we have dealt with in our written submissions at paragraphs 25 and 26, polling is to be conducted in accordance with section 220. Section 221 deals with what is described as admission to vote which is limited by subsections (1) and (2) to the State and Division respectively in respect of which the elector is enrolled. Subsection (3) of section 222 then provides:

For the purposes of this section, the electoral Rolls in force at the time of the election shall be conclusive evidence of the right of each person enrolled thereon –

I omit the bracketed words “to vote as an elector” –

unless a person shows by his or her answers to the questions prescribed by section 229 or 200DI that he or she is not entitled to vote.

Your Honours can ignore for present purposes section 200DI which only deals with pre-polling. The general section is 229. Section 229 requires in (1) three questions, the first two of which are, “What is your full name?”, the second, “Where do you live?” Subsection (4) provides:

If the answers a person (the claimant) claiming to vote gives to the questions in paragraphs (1)(a) and (b) do not satisfy the presiding officer that the claimant is a particular person on the certified list of voters or an approved list of voters for the relevant Division, the officer may ask the claimant -

further questions. Unsatisfactory answers may result in the person not being entitled to vote. If the second plaintiff, Mr Thompson, turned up at a polling booth and answered truthfully the question as to his current address then he would not answer the description of the named person at the named address on the roll and he would not be admitted to vote. He would, however, meet the description in section 235(1)(c)(i) of a person whose:

answers do not accord with the relevant information shown for that particular person on the list –

As a result, he would be permitted to cast a provisional vote under section 235(1B) if he could produce proof of his identity within the specified time. If he cast a provisional vote then as a “declaration vote” as defined in section 4(1) it would be dealt with in accordance with the preliminary scrutiny for which provision is made in section 266(3), that is according to Schedule 3.

Schedule 3 is at page 438 and following and is a little tedious to go through. May I simply indicate that in the case of Mr Thompson one would go through paragraph 6(ca) to get to paragraph (4)(a) and then to paragraph 10(c) and end up at paragraph 19 where, assuming he voted in the same State, his Senate vote would be referred for further scrutiny, his House of Representatives vote would not.

Paragraph 12 deals with the particular case of a declaration vote where the claim is that an elector’s name had been excluded from the roll. It applies, as your Honours will see, only where – and I am looking at 12(b)(ii) – the omission “was due to an error made by an officer or to a mistake of fact”. That provision was considered by Acting Chief Justice Brennan in Muldowney [1993] HCA 32; 178 CLR 34 at page 40 where his Honour said, in the middle of the page, second last sentence of the first full paragraph:

The satisfaction of the second condition depends on the occurrence of an error in the procedure for enrolment which, had it not occurred, would have resulted in an entitlement to vote.

His Honour, at the previous page, page 39, said this generally about the roll:

There is no undue hardship or anomaly created by insisting on enrolment as a qualification to vote . . . The Roll is pivotal to the electoral system created by the Act

Indeed, that is emphasised further when one has regard to the scheme of the Act for dealing with electoral disputes which begins at page 397, Part XXII. Your Honours well know section 353(1) limits any dispute about the validity of an election to the Court of Disputed Returns and section 361(1) prevents the Court of Disputed Returns inquiring into the correctness of the roll. In In Re Berrill’s Petition [1976] HCA 50; 134 CLR 470 at page 474 it is said by Justice Stephen:

Any electoral system which, instead of providing a means of putting the electoral rolls in order before an election, allows alleged errors in those rolls to ground an attack upon the validity of the subsequent election exposes to risks of dislocation the democratic process which it is designed to serve. Hence, no doubt, the provisions, commonly found in our election laws, for the prior adjudication of disputes as to the state of the rolls, such disputes being treated as wholly distinct from, and not the proper subject matter of, petitions concerning disputed elections and returns.

There are similar observations in a case I do not ask your Honours to turn to, Snowdon v Dondas [1996] HCA 27; 188 CLR 48 at pages 74 and 75. If you then turn back - - -

GUMMOW J: How does that help you in terms of sections 7 and 24 of the Constitution?

MR GAGELER: What is shown by the scheme of the Act is two quite distinct processes. There is an administrative process which is substantially antecedent to the electoral process. The administrative process requires the making of a claim and the processing of a claim.

GUMMOW J: I should have said 7, 24 and 47 of the Constitution.

MR GAGELER: Yes. There is an administrative process within which entitlement to enrolment is determined. There is separately an electoral process which is predicated upon enrolment and which does not admit of any challenges to its results by reference to the roll. All of this is directed to emphasising the critical nature of the integrity of the roll.

GUMMOW J: The critical nature, perhaps, of making sure that as many people as practically can do so can exercise their franchise because disputes at the other end are committed by section 47 to the chambers themselves, unless there is a legislative structure, as there now is with the Court of Disputed Returns, but which there need not be, and in the United States, for example, I think, is not.

MR GAGELER: Correct.

GUMMOW J: So from the point of view of section 24 and the objectives of 7 and 24, these questions are not meant to be postponed to section 47 as to the efficacy of the system to produce what one might call a maximum poll. Any administrative procedure, however much it might be extolled, has to be measured with that in mind if you are in these questions of proportionality.

MR GAGELER: I do not disagree with anything your Honour has said. However, where what is challenged is one tiny element, an important, but tiny element - - -

GUMMOW J: Yes, two hours.

MR GAGELER: - - - of a scheme, what one has to understand is the scheme itself. Enrolment, your Honours, Part VIII - - -

CRENNAN J: Just before you leave that, is there any suggestion that the level of post-announcement enrolments in the 2004 election, which is the subject matter of paragraph 11 of the agreed statement of facts, had any negative impact, if I can put it that way, in relation to what you are describing as I guess the orderly process of the various steps that need to be taken within the 33 days or no later than 58 days?

MR GAGELER: No, your Honour. Your Honours, dealing with enrolment under Part VIII, beginning at page 122 of the Act, enrolment or transfer of enrolment is a matter of entitlement under section 99(1) or (2) but it occurs only through the mechanism of making a claim under section 98, that claim meeting the description in section 98(2).

It is the making of a claim that then triggers the process of enrolment. It is significant, your Honours, that although the Electoral Commissioner under section 114 can, and in some circumstances is, required to object to enrolment and then to determine an objection in a way that can remove a person’s name from the roll, the Electoral Commissioner has no power to enrol a person in the absence of a claim. The entire system is predicated upon the making of claims.

By force then of section 101(1) or subsection (4) the making of a claim is a matter of duty which is to be fulfilled forthwith and, in any event, within 21 days of the entitlement arising. As Justice Hayne pointed out this morning, it is subsection (7) which creates the continuing incentive to fulfil that duty notwithstanding its prior breach.

The processing of a claim then is not mechanical or automatic. It involves a deliberative judgment on the part of the Electoral Commissioner. Your Honours have been taken to the process described in the statement of agreed facts at paragraphs 3 to 8, but in terms of the Act that is a process which is required by the terms of section 102(1)(b) which makes enrolment turn on satisfaction of the Electoral Commissioner as to entitlement, the flip side of that being paragraph (c) where the Commissioner is not to enrol but to reject and notify of rejection in the absence of that satisfaction.

That gives rise to administrative review under Part X and, of course, it could give rise to judicial review under section 75(v). Enrolment where it occurs can then be the subject of objection under Part IX, relevantly by another person under subsections (1), (1A) or (1B) or by the Electoral Commissioner under subsection (2) or subsection (4). Where the Electoral Commissioner does the objection, the Electoral Commissioner is required to give the notice set out in section 116 and then to determine the objection under section 118. That determination, your Honours will note under subsection (1) is to be “as soon as practicable” but that is after the end of “20 days” from “the giving of the notice”.

That notice requirement, if nothing else, sets a practical limit on what can be done in respect of the processing of objections after the date of the issue of the writs. Your Honours will note section 118(5) in any event and consistently with the scheme of the Act prevents a determination which would “remove an elector’s name from the Roll” within the period there specified. Again, that is subject to administrative review under Part X and judicial review under section 75(v).

So what one gets from this, your Honours, is that there is, within the scheme of the Act, a process of continuous enrolment which requires the making of claims which in an orderly way proceeds up to the issue of the writs or thereabouts and then upon the issue of the writs there is a triggering of the closure of the rolls and the beginning of this electoral process which treats the rolls as authoritative, an error in the roll being incapable of affecting the election.

Now, central to the enrolment process is section 101, which creates the obligation to enrol forthwith. That section dates back to section 8 of the 1911 Act, which your Honours have in our materials within volume 1 at page 260, and the reasons for its introduction in 1911 were set out in the second reading speech, which your Honours have in our materials, volume 2 page 629. What is apparent from the second reading speech which begins at page 629 is that the precursor to section 101 introduced by section 8 of the 1911 Act was seen to be directed towards ensuring the integrity of the rolls in the broad senses that are taken up by the plaintiffs in the present case, that is, ensuring that the roll is comprehensive and up to date as much as ensuring that it is correct.

Without reading the passages, in particular at page 630, you see that in the last two paragraphs in the right-hand column. At page 631, you see that in the middle of the right-hand column in the paragraph that begins “A scheme of compulsory enrolment” and at page 632 you see it also in what Senator Pearce said in the right-hand column in the large paragraph in the middle of the page.

Your Honours will recall that within the scheme of the current Act the harshness of section 101 is ameliorated and enrolment is facilitated in the case of a person about to turn 18 by section 100 which allows a person to be enrolled provisionally. Section 100 now refers to a person aged 16 being able to apply for provisional enrolment. That was due to an amendment made this year by Act No 110 of 2010. The previous age and, as introduced in 1983, was 17 and in the case of persons about to become Australian citizens, sections 99A and 99B, allow for a similar form of provisional enrolment; 99A introduced in 1992 and 99B introduced in 2006.

Now, your Honours, dealing with the cut-off for enrolment I make two obvious points. One is that any system that makes enrolment dependent on the making of a claim will result in the non-enfranchisement of those who do not make a claim and it is, in part, for that reason that compulsory enrolment was introduced in 1911.

The second point is that any cut-off for the making of claims will thereby result in the non-enfranchisement of those who do not make their claims by the cut-off date and, indeed, that is illustrated by the agreed statement of facts, page 92, paragraph 15, which shows that in 2007 100,000 people or so lodged claims for enrolment and transfer after the close of the rolls. But in 2004, when there was a longer period, a period that our learned friends say passed constitutional muster, your Honours will see that the number of persons lodging late claims was actually larger.

Historically, as your Honours will see from the Commonwealth legislation which we have summarised in our written submissions, there has always been a cut-off date, always fixed by reference to the issue of the writs. Indeed, the existence of such a cut-off date or a cut-off date is essential to the scheme of the Act. Between 1902 and 1909 the cut-off was the day of the issue of the writs, which would have been the beginning of the day of the issue of the writs. Between 1909 and 1983 it was the day of the issue of the writs 6.00 pm, and between 1983 and 2006 it was seven days after the issue of the writs when, in practice, as your Honours have seen from the material, a large number of claims were made.

Now, there has been a debate within Parliament since at least the mid-1990s, a debate which has largely been split along party lines. There are those who, for whatever motivation, have argued that the seven-day period was appropriate and should be maintained so as to not shut down what is described as a last minute opportunity for enrolment. That terminology “last minute opportunity for enrolment” your Honours have seen, for example, in some of the material you were taken to this morning.

It is the language used in the Australian Electoral Commission’s submission that one finds at volume 4, page 1492, paragraph 12.2.3 taken up by some members of Parliament. There has been, on the other hand, those who, for whatever motivation, have argued that the solution to the integrity of the rolls lies in encouraging people to comply in a timely way with their civic and legal duty to enrol, and they have argued that a period of grace in the form of this seven-day catch up opportunity simply encourages neglect and raises a risk, or raised a risk, of error or fraud.

What happened in 2006? One of those views prevailed and what you see from the second reading speech – there was a second reading speech. It is in the Commonwealth materials, volume 2 at page 646 – and what you see also from the explanatory memorandum in the same volume at page 652 is that the justification for the change in the cut-off date that occurred by virtue of the 2006 amendment is said to be set out in the recommendation of the majority in the 2005 report of the Joint Standing Committee on Electoral Matters into the conduct of the 2004 election. We have, your Honours, set out in our written submissions in paragraph 46 the relevant extract, but the document itself, or a longer extract of it, your Honours have in volume 3, tab Q within the application book at pages 808 to 809.

GUMMOW J: Assume, Mr Solicitor, on 7 July there had been a large parcel of applications which, in fact, were fraudulent, what would happen in circumstances where the Governor-General then – when it prorogues and dissolves and on the 17th the writs issue? How does this argument about integrity deal with that situation?

MR GAGELER: The processing of those claims would occur in accordance with the practice that is set out in the agreed statement of facts and the claims may or may not be accepted - - -

GUMMOW J: By when?

MR GAGELER: - - -and the claimants enrolled, if they were enrolled, then the objection process could not meaningfully occur. There would be really no facility for a person, or even the Electoral Commissioner himself having enrolled someone, becoming aware of the possibility of fraud to take the persons off the roll for two reasons. One is the objection could not be determined in the timeframe - - -

GUMMOW J: What I am putting to you is there is always going to be timeframe problems.

MR GAGELER: Yes, yes. Two things that one gets out of this report, however, are yes a concern about the potential for fraud. You see that if you are looking at page 809, paragraphs 2.122 and following.

HAYNE J: It is 121 and following, I would have thought?

MR GAGELER: Yes, 121 and following, I am sorry. That is one point, the potential for fraud and it is not put any higher than a potential for fraud, increased by the large number of claims and the very small timeframe within which to process those, as expressed on the previous page at paragraph 2.112. You do get this concern about the potential for fraud in circumstances where there is at least a potential for overloading the Commission, but more fundamentally what you see at the top of page 809 in paragraphs 2.116 through to 2.120 is a view that the way in which the issue of non-enrolment ought, in principle – and this is really at the level of principle – be addressed is by encouraging compliance with the existing obligation to enrol forthwith upon being entitled, the obligation that has existed since 1911.

While ever the period of grace remained, it would simply undermine the fulfilment of the existing duty. The way in which the rolls ought best be kept up to date and their integrity in that sense maintained is by encouraging people to comply with their existing obligations, not giving them a period of grace. That is the view and that view is really the first of the two points made in this report and the first of the two considerations that inform the 2006 amendment and identify the ends to which it is achieved. Yes, there was concern about fraud, but never put any higher than the potential for fraud. So far as that potential for fraud is concerned, may I take your Honours to a couple of other parts of the material. Would your Honours prefer me to do that tomorrow?

FRENCH CJ: I think it might be convenient if it will take only five minutes or so.

MR GAGELER: It will only take five minutes.

FRENCH CJ: Yes.

MR GAGELER: Within volume 3, tab O, page 607 you see the 2001 report of the same committee. At page 607 there is a discussion of the extent of enrolment fraud. The point made at page 611, paragraph 2.25, the first sentence being that the:

Estimating the extent of potential fraud in any organisation, either public or private, is inherently difficult.

At tab S in the same volume within the ANAO- - -

GUMMOW J: Paragraph 2.15 indicates there were some problems in Queensland from time to time but they do not impact on the federal election system, do they?

MR GAGELER: That is the subject of the ANAO report to some extent, that is at tab S. The Queensland problems - - -

GUMMOW J: I am referring, in particular, to 2.24, the remarks of Justice Shepherdson:

...I do not consider that the small numbers of persons who have engaged in this practice . . . should necessarily lead the Australian Electoral Commission . . . to believe –

et cetera.

MR GAGELER: The Queensland situation is at pages 896 to 897. It is referred to in the ANAO report, paragraphs 1.37 to 1.38. At, then, page 951, within the same report, it is said at paragraph 4.99:

Based on its review of AEC’s procedures, and the findings of the JSCEM’s recent report, the ANAO considers the AEC’s policies and procedures are adequate to detect the majority of attempts at electoral fraud. The ANAO noted that recent fraudulent enrolments in Queensland, the subject of the Shepherdson Inquiry, were all detected by Divisional Office staff during routine AEC enrolment procedures. Notwithstanding this, no system can be guaranteed free of fraud -

Your Honours, I think we have taken to some analysis at page 874, or at least the results of the analysis of the ANAO’s audit of the AEC’s electoral roll finding it of high integrity. That report of the ANAO was itself then the subject of a report by the joint committee.

FRENCH CJ: Just before you move to the report it was the subject of, what use are we to make of these references?

GUMMOW J: There was a majority and minority and there is a fair amount of vigorous language.

MR GAGELER: Indeed. Nothing more than this. My point is that the fundamental reason for the 2006 amendments identified in the 2005 report at page 809 - - -

FRENCH CJ: Of the joint committee?

MR GAGELER: Yes – was a point of principle about encouraging people to comply with their existing obligations. So far as there was reference to fraud, it was never put any higher than the potential for fraud. I have been taking your Honours to the earlier documents which also never put the point any higher than a potential for fraud. At tab P – this is the final document that I want to take your Honours to – what you find is the same Joint Standing Committee on Electoral Matters reviewing the ANAO report to which your Honours were taken.

As to the conclusion in the report about the accuracy of the rolls, there is at page 743, in the first three paragraphs on that page, a criticism of the ANAO’s methodology. There is, at page 749, the statement in paragraph 2.43 that:

It was apparent from the responses from both organisations –

that is the ANAO and the AEC –

that the AEC’s fraud control plans could not guarantee total prevention of electoral fraud.

You will see that in the quotation from the AEC itself.

FRENCH CJ: Very well. We will adjourn until 10 o’clock tomorrow morning.

AT 4.22 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 5 AUGUST 2010