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High Court of Australia Transcripts |
Last Updated: 5 August 2010
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 THURSDAY, 5 AUGUST 2010, AT 10.02 AM
(Continued from 4/8/10)
Copyright in the High Court of Australia
__________________
FRENCH CJ: Yes, Mr Solicitor.
MR GAGELER: Your Honours ought have a supplementary agreed statement of facts and your Honours will see that the status of the various reports and submissions in the original statement of agreed facts is sought to be clarified in paragraph 1, the agreement being that they accurately state the views of the relevant bodies at the time those views were expressed and insofar as the parties seek to get more concrete facts from those documents, those concrete facts are identified in paragraph 2 and in paragraph 3.
There is one additional document which is not yet the subject of agreement. Your Honours have been provided with it and, in principle, there seems no reason why it should not be dealt with in the same way as other documents in paragraph 27. It is a submission of the Australian Electoral Commission to the JSCEM and ought be received, for what it is worth, as expressing the views of the AEC at the time.
Why it is a document I want to take your Honours to and, in my submission, should be permitted to do so whether it is the subject of agreement or not is because it is the document that forms the basis of the discussion in the JSCEM report that one sees in volume 3 at pages 808 to 809. My learned friend is not objecting to the document. He says he just needs more time to consider it, and that is a reasonable position for him to take. Yes, he wants to say something.
FRENCH CJ: Yes, Mr Merkel.
MR MERKEL: Can I just indicate that I have only seen the document shortly before Court this morning. We do not in principle have any objection to AEC submissions to the parliamentary committee being relied upon or referred to for whatever purpose they may legitimately be referred to, but it was the eighth submission, and my learned friend has indicated the point he wants to make, and we said we would wish to look at the series of submissions so that this can be seen in context which currently we are looking at, so that we would reserve to right to tender any other submissions that are relevant that were put to that committee to give this particular submission a context. That is why we were unable to agree. One, I have not read it and, two, is we want to make sure that it is put in in a proper context in the context of all of the AEC submissions.
FRENCH CJ: We can deal with that if it becomes necessary to do so.
MR MERKEL: Thank you, your Honour.
MR GAGELER: Your Honours, can I turn to the first - - -
HAYNE J: Just before you do that, whilst on this matter that is provoked by the debate not yet concluded between you about these matters, might I go back to 809.
MR MERKEL: Yes, your Honour.
HAYNE J: Not for the purpose of canvassing the validity of the opinions there but to see, provoked by that, whether an essential premise for the argument against you can be identified as being that the Parliament must provide a last minute opportunity for enrolment and by last minute opportunity, the argument against you appears to proceed from the premise, that is a quite complex premise, containing at least these elements. One, compulsory enrolment seems inevitably to carry with it the notion of, one, a time for compliance, two, specification of a consequence, commonly a penal consequence for failure to obey.
The premise for the plaintiff’s argument seems to be that it is within power in a system of compulsory enrolment and voting to fix a time and a penal consequence for failure to enrol. Notwithstanding that, the Parliament must, so it is said, provide a further opportunity, a further opportunity which is not simply proximate to an election, but goes beyond the time at which the electoral process is put in train by the issue of the writs. Is that the premise?
MR GAGELER: That appears to be the premise. The deeper premise appears to be that sections 7 and 24 of the Constitution, at least in certain circumstances, will give rise to a duty of affirmative action on the part of the Parliament in exercising the legislative power conferred by section 51(xxxvi) and that that will go so far, in some cases, as to require the horse and the cart to march in a different synchronisation from what they would otherwise do under the orderly mechanisms of the Act as they have existed since 1918.
HAYNE J: Whether or not that is so, the premise appears to be one which can find its textual root in the notion of “directly chosen by the people” only on a particular understanding of that phrase.
MR GAGELER: Yes, but it is an understanding which is different from, in our respectful submission, or at least an extension of the understanding that one sees in Roach. In Roach there were two questions that were identified. The first question, that is, the identification of disqualification in that case, we go so far as to recognise impediment would be sufficient, flows from an understanding consistent with the understanding in Lange that sections 7 and 24 are not a requirement for there to be the maximum possible electoral choice, but they are a restraint on unjustifiable burdens on electoral choice.
That is the way in which the first question arises, textually and conceptually and consistently with Lange as applied in Roach and on the way in which the plaintiffs quite narrowly focus their case here. That first question in Roach really resolves into two elements. The first element is to ask whether item 41 of Schedule 1 to the 2006 Act substantially impeded enrolment by the cohort of adult Australian citizens when it changed the cut-off for enrolment from 8.00 pm seven days after the writ to 8.00 pm on the day of the writ.
The second element is whether items 41 and 52 of the same schedule had the same effect when it changed the cut-off from 8.00 pm seven days after the writ to 8.00 pm three days after the writ. That really is the ambit of the dispute as to the first question in the present case.
GUMMOW J: Just a minute, if I may, Mr Solicitor. You refer to item 41 but in fact that has three elements in it. I think your opponents seek relief in respect of the new subsection (4) and (4AA). I do not think they are complaining of (4AB) but consistently with acceptance of what they say about (4) and (4)(a) would (4AB) be any different? This is people turning 18 years.
MR GAGELER: No, in principle it should not be any different.
GUMMOW J: In principle I would think it should not be.
MR GAGELER: Your Honours, having identified the questions fairly precisely can I answer them in stages. I want to first identify precisely who it is who is legally and practically affected by those changes. I then want to give a qualitative answer why in our submission there is no impediment and then I want to give a quantitative answer as to why there is no impediment and in doing so I hope to answer the question asked of me by your Honour Justice Bell at line 2625 of the transcript and that is precisely what are we saying in paragraph 56 of our written submissions. Dealing first with the legal and practical effect of the changes - - -
HAYNE J: Can I interrupt again, Mr Solicitor? If you address by reference to the changes, and I understand the forensic need to do so, you should not assume, so far as I am concerned, that so to identify the problem may be permitted to obscure that comparison presupposes not just validity but essentiality of the 84 arrangement. That is why I raised with you this question of premise.
MR GAGELER: Yes, and nor in me addressing our learned friend’s case in this way am I am making any concession in that regard, your Honour. That is really quite clear, I hope, in our written submissions. Your Honours, in the case of new enrolments, there are two groups who might, potentially, be legally affected by the shortening of the period. There are those who turn 18 at sometime in the seven days after the writ is issued. That legal impediment, in their case, is removed by section 100, which, at the relevant time, allowed a claim for provisional enrolment from age 17. The other group is those who become Australian citizens at some time in the same seven-day period.
Any potential legal impediment there is wholly removed by sections 99A and 99B. Everyone else is, at most, practically affected and those others practically affected are necessarily persons like the first plaintiff, Ms Rowe, who, before the writ, had not only the opportunity, but the obligation to make a claim.
In respect of transfers of enrolment, there is one small group who is doubtless legally affected by the change in cut-off and that is from amongst those who change their address in the month before the issue of the writs and whose one month residence requirement – the requirement of section 99(2) – expired somewhere between that three days and seven-day period. Obviously if you have a one month residence requirement, as has long existed under section 99(2), or its equivalents going back to 1902, and you have a cut-off for enrolment before polling, then there are going to be some people who miss out for that reason and it is hard to see how the difference between three and seven days is in any way material. But again, everyone else is, at best, practically affected and they are persons like the second plaintiff, Mr Thompson, who again, before the issue of the writ, had not only an opportunity to make a claim for enrolment, which he did not take up, but the obligation to make a claim for enrolment, which he breached.
Now, the qualitative answer to that first Roach question in these circumstances, in our submission, as to why there is no impediment, really lies in that prior opportunity and obligation to make a claim for enrolment. One simply cannot, in our submission, say that the fixing of a drop-dead date for a thing to be done is an impediment to the doing of that thing unless you point to some legal or practical reason why it should not or cannot be done before that drop-dead date, and that is absent in the present case. A guillotine order is well known certainly to me. It is generally not seen as an impediment to action. In my case it is generally a stimulant to action.
GUMMOW J: When you say “impediment”, are you speaking in terms of can?
MR GAGELER: I am talking about either a legal or a practical constraint on action. The quantitative answer is this. It is simply not shown on any of the objectively stated facts before the Court nor, so far as we can see, in any of the material that was before Parliament at the time of the enactment of the 2006 amendment that, having a cut-off at seven days resulted or was likely to result in a greater number of people being enrolled than having the cut-off at one or three days. The point being that the truth about human nature is that people, in general – one could say young people in particular – tend to leave things to the last minute and whatever the cut-off is there will always be some who miss out.
If you look at the agreed statement of facts, page 92, paragraph 15, and really to repeat a point that I sought to highlight yesterday so far as the sort of raw figures go, what you see from paragraph 15 is that in 2004, when you had the seven-day cut-off, there were 168,000-odd people who missed it. In 2007, when there was the three-day or the one-day cut-off, there were 100,000, a lesser number who missed it. If we go to the affidavit of Mr Dacey, page 31 of the same volume, paragraphs 7 and 8, what you see is that in the current election, again with the three or one-day cut-off, there were about 100,000 people who appear to have missed it, but 500,000, it is shown, who actually made it.
If you go back to one of the documents upon which our learned friends quite heavily rely, that is, the submission of the AEC in 2000 to the JSCEM – this is in volume 4, page 1429 at page 1492 – you really see the nub of the point. The AEC then took a consistent line, which one sees in paragraph 12.2.3, the line taken by the AEC being that:
the early close of rolls would also shut down a last-minute opportunity for electors to amend their enrolments . . . It is a fact of life that many electors do not keep their enrolments up-to-date at all times, and it has long been recognised that many electors will not attend to this legal responsibility until it is absolutely necessary.
Not a statement of the fact, but a statement of common sense. All that can be said to have occurred with the amendment in issue in the present case is that there has been a bringing forward of the date when it is absolutely necessary. So far as the second Lange question is concerned - - -
CRENNAN J: Just before you leave the point and numbers affected and so on, at about 1183 of the transcript, page 27, Mr Merkel said:
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.
MR GAGELER: Yes.
CRENNAN J: I take it that is not in contention?
MR GAGELER: No, I will have that checked. That is just a consequence of the, I hope an accurate, implementation of the provisions as amended.
CRENNAN J: Yes.
MR GAGELER: Your Honours, so far as the second Lange question is concerned, that is, the identification of the ends and the establishment of lack of proportionality between the means and the ends, I talked to your Honours yesterday briefly through the second reading speech and the explanatory memorandum to that 2005 report of the JSCEM to land at pages 808 to 809 and, I do, your Honours, want to dwell on what is there said. What one sees in the passage page 808 to 809 is really the identification of two ends or objectives, to some extent, overlapping, but, in principle, discrete.
What you see in paragraphs 2.114 through to 2.120 is the identification of one objective which, if I can paraphrase, summarise, is essentially to remove what the AEC described as a last minute opportunity but what the majority of the committee choose to describe as a period of grace, thereby, in the view of the committee, creating an incentive for compliance with the existing obligation under section 101 for there to be a continuous, orderly update of the rolls through the making of claims; something, of course, the AEC cannot compel. The second, said to be an additional reason or end or objective, you see then in paragraphs 2.121 to 2.126 across the page is a concern to ameliorate the potential for fraud created by the large number of claims flooding in during this period of grace.
Now, may I deal with those separately and may I touch, really quite lightly, on the second of them. It is really the second and subsidiary end or objective that is identified, that is, the potential for fraud. The points that are to be made are, one, it appears very much in its expression as a secondary or additional reason for the amendments, two, the potential for fraud is put no higher than that, as a potential, three, it is hardly baseless in circumstances where what is being focused upon is a period when the AEC obviously has a lot to do and when it is, as appears from paragraph 2.112, flooded with a large number of claims.
The AEC and the ANAO, and I took your Honours to these documents yesterday, has never ruled out the possibility of fraud and it occurs in a period where because of the non-application, for practical reasons as well as for legal reasons, of the third party objection procedure, the verification of the accuracy of those claims is entirely dependent upon the procedures of the AEC.
I should have said, in an answer to the question your Honour Justice Gummow asked me yesterday, that if fraud is detected by the AEC there is no need for the AEC to rely, itself, upon the objection procedure. There is a separate procedure in section 106 which is applicable at this time for the Electoral Commissioner, upon certification by the Australian Electoral Officer to the effect that a person secured enrolment by making a false statement, to remove the name of the person from the roll between the date of the issue of the writ and the close of polling.
But the point to be made is this, that the attitude that one takes to the potential for fraud in that period is very much affected by two things. One is the weight that is placed on the correctness of the rolls relative to the completeness of the rolls, both of those being aspects of integrity and involving some element of balancing, and the other is the faith that one is prepared to repose in the processes of the AEC overseen, we accept, by the ANAO in the absence of the practical or legal availability of a procedure or third party objection.
Both of those considerations, in our respectful submission, are very much matters of value judgment which for some are properly seen as matters of principle. We are not here in an area of empirical analysis and if you were to look at the parliamentary report which we annexed to our submissions it is a consideration of the Bill for the 2006 Act. It is no more than part of the parliamentary history. Again, it is an identification, in part, of the ends to be achieved by this legislation. If you go to page 18 where, having set out various submissions, the committee draws this conclusion, paragraph 3.17, second sentence:
it considers that measures designed to strengthen and protect the integrity of the electoral roll are essential for upholding Australia’s democratic system. Limiting the scope for electoral fraud is therefore important, both in principle and practice.
As I said, very much a value judgment with which one could disagree, indeed, strongly disagree, and that was a majority view. Your Honours, that, however, is the secondary or additional and, in our submission, apparently subsidiary end that is identified in that discussion at pages 808 to 809 of the report of the JSCEM. The main reason put forward was the removal of the period of grace. May I give just a little of the background there.
If you look at the position in 2006, what appeared, and one can take this objectively – I will show your Honours the material in a moment – is that the number of persons entitled to be on the roll, that is, adult Australian citizens, who were not enrolled was large and increasing. In the 2001 election it was about 900,000 people. In the 2004 election it was 1.2 million people. That was despite a considerable amount of time, effort and public money being expended by the AEC on CRU, the continuous roll update, which had been going on since 1999.
Now, to make good the first point, the numbers, your Honours could look, you need not look now, at figure 2.2 in the document handed up yesterday, that is the 22 January 2010 submission of the AEC. This is, according to the supplementary agreed statement of facts, to be treated as the fact and there you find the number of missing electors for the 2001 election and for the 2004 election. So far as the public expenditure and effort is concerned, your Honours will recall that paragraph 9 of the agreed statement of facts at page 89 refers to the annual reports of the AEC as summarising the activities, the CRU activities.
We have provided your Honours with a piece of paper, a single sheet, which extracts the relevant information from those reports and what one can see is considerable expenditure and one can also see the ARC estimates of the transactions, that is the changes to the roll, generated by that expenditure and if one can do the maths, it is quite an expensive exercise through CRU to get a person on the roll.
If you then look to the document that is not yet agreed, but which is the eighth submission of the AEC to the JSCEM of 23 September 2005, then what appears at attachment A from page 8 through for a couple of pages is a series of tables setting out statistics relating - - -
HAYNE J: Sorry, what page number of this document are you at?
MR GAGELER: At page 8 your Honours will find the heading “Attachment A” and then there are some pages of tables which follow which are not numbered. What you get from those, sufficiently for present purposes though, is summarised at page 5. Your Honours see at page 5 a reference to the three tables. If I can take it chronologically, if you look to what is said about table 3 it is said:
Table 3 shows that of 320,829 enrolments received during the 1999 COR, 110,466 (34.43%) were from people whose address had been contacted by CRU in the 12 months leading up to the COR -
You then look at table 2. It shows:
that of 373,766 enrolments during the 2001 COR, 172,605 (46.18%) were from people whose address had been contacted by CRU in the 12 months leading up to the COR, with around one third of these contacts occurring within six months –
of that. Then table 1:
shows that 256,513 (60.50%) of the 423,993 enrolments received during the 2004 COR period were from people whose address had been contacted by CRU in the 12 months leading up to the COR, with just over half of these contacts occurring within six months prior to the COR. The AEC believes this reflects the saturation of CRU activities undertaken in the six months prior to the COR.
Now, it is against that background of people being contacted through the CRU process, accounting for a very large number and an increasing number of those who make these last-minute claims during the period of grace that you find the discussion that occurs at pages 808 and 809 and in the light of that information, the discussion that occurs there is something that you might agree with, you might disagree with, but it is a discussion very much of principle, is very much a judgment being made that is a value judgment that to the effect that we are talking here of a civic duty as well as a legal duty and what is the appropriate response to the neglect of this civil duty and legal duty is to encourage, create an incentive for compliance, not give an indulgence. As I said you might agree, you might disagree, but it is not irrational and it is not capricious.
GUMMOW J: Mr Solicitor, is any of this material canvassed in the second reading speech which appears at page 646?
MR GAGELER: There is a reference back to the - - -
GUMMOW J: Where do we see that?
MR GAGELER: Does your Honour have our - - -
GUMMOW J: Page 646.
MR GAGELER: Yes, page 646 first paragraph and similarly the explanatory memorandum page 652, line 20, the first paragraph.
GUMMOW J: That is it, is it not?
MR GAGELER: That is it, yes. Your Honour, can I say it is not as if these issues have not been gone over for a good 15 years before the battlelines were well and truly drawn. What was to be said has been very much said.
GUMMOW J: The other thing I wanted to ask you was looking at the 2006 amendment, which is the Bill that has been put forward with the second reading speech and the explanatory memorandum, I suppose just if we look at item 52 which is repealed section 155, suppose that said “The date fixed for the close of the rolls is the date of the proclamation of the dissolution of the House of Representatives”. Would that have been valid?
MR GAGELER: Yes. I do not have to defend a law of that nature here, but in principle, yes.
GUMMOW J: Why do you then rely upon or seek to get some advantage out of the perception at page 1492 as to:
electors will not attend to this legal responsibility until it is absolutely necessary.
How would they know it was absolutely necessary? There is no warning of dissolution.
MR GAGELER: There is a signal in the Constitution, your Honour, that it has to occur every three years. That is how they would know. That is how they do know.
GUMMOW J: Within three years.
MR GAGELER: We think that is the point.
GUMMOW J: How many Parliaments have expired at the end of three years since 1908?
MR GAGELER: That is not the point.
GUMMOW J: I see.
MR GAGELER: The point is that it has to come around every three years; that is the point.
GUMMOW J: I just thought you were fixing on this notion of absolute necessity by reference to some realities in practical life?
MR GAGELER: Your Honour, if I used the language of absolute necessity I retract it. I have not been talking about absolute necessity. I have been talking - - -
GUMMOW J: No, you said it was a fact of life, I think.
MR GAGELER: I am sorry - - -
GUMMOW J: You fixed upon page 1492.
MR GAGELER: That people will - - -
FRENCH CJ: Human nature.
MR GAGELER: Human nature.
GUMMOW J: I am just asking you, if that is human nature, and you are talking about something being absolutely necessary, how are they to have a perception of that other than by – you seem to be saying, knowing that, at least at the end of three years, this Parliament will expire?
MR GAGELER: You had better perform your civic duty and your legal duty before dissolution, in your Honour’s example.
KIEFEL J: I suppose, the other feature, in real life, is that whilst elections might be called ultimately, suddenly, there is usually some discussion about it. There are usually rumours about elections long before they are called.
MR GAGELER: Yes.
GUMMOW J: Rumours that do not –
MR GAGELER: I think the material before your Honours shows that enrolments, in practice, increase during the period as an election is anticipated. Now, your Honours, to the extent that it appears to be part of our learned friend’s case that continuous roll updating might have, or might be seen to be a less restrictive means, or a more effective means of encouraging enrolment from that which was chosen in the enactment of these 2006 amendments, can we say these things and I will say them quickly. One is simply to point to a less restrictive or potentially more efficient means of achieving the same result is not to apply the test in Roach or Lange, it is far too strict analysis, perhaps, applicable to section 92 according to Betfair but not the language of Roach or Lange.
KIEFEL J: This is the test of reasonable necessity or alternative measures?
MR GAGELER: That is right.
KIEFEL J: Well, the alternative measure here arguably was that you do not do anything about non-compliance with an Act?
MR GAGELER: Yes.
KIEFEL J: The open-ended period of grace is to an extent, although not strictly, somewhat inconsistent with the notion, with the requirements and obligations set out by the Act.
MR GAGELER: That was very much the view of the majority in the report.
KIEFEL J: But Roach does not proceed upon a test of alternative measures, a second limb of the proportionality.
MR GAGELER: That is my point, yes, that is my point. Our learned friends, particularly in their submissions in reply, elide Roach with Betfair and really they are separate streams of analysis. There is a commonality about the structuring of the questions but they are not the same questions, in our submission.
The second point to be made is that if one is suggesting that this administrative process, continuous roll update, is or would have been a more effective or less restrictive means of achieving the same result, if that is what our learned friends are saying, then their point is simply not made out on any of the material that was before the Parliament in 2006.
I have taken your Honours to what was said about the limits of continuous roll update in the submission of the AEC to the joint committee in 2005 and it is not made out on any of the material before the Court. I will come back to that but, in our submission, as a matter of principle, if you are looking at less restrictive means, and we say you are not in this field, but if you were to be looking at less restrictive means, these means, that is administrative action involving the expenditure of public funds, are just not within the realm that can meaningfully be addressed and compared judicially so as to impugn a legislative choice.
When less restrictive means are looked at in the Betfair type context, the section 92 context, what is looked at is a less restrictive form of regulation. In no case are we aware that this analysis had been brought to bear upon an alternative scenario which is suggested to involve administrative action and the expenditure of public funds.
KIEFEL J: Section 92 cases might be seen as standing apart somewhat in relation to proportionality, not the least because they concern a guarantee.
MR GAGELER: An expressed guarantee, yes.
KIEFEL J: Guarantee, yes.
MR GAGELER: Your Honours, when I say that the point is not made out on the facts before the Court, again, amongst the agreed facts, and these are agreed as facts, you will find in volume 4 - - -
GUMMOW J: Just before we get there, Mr Solicitor, would you deny the attribution to sections 7 and 24 of some characteristics of the guarantee?
MR GAGELER: No.
GUMMOW J: I thought so. Now, on this question of alternative measures, we have in the materials, I think, the New South Wales statute, Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009, which would seemed to introduce, for administration by the Electoral Commissioner, a form of automatic enrolment.
MR GAGELER: Yes. I am not sure how far the - - -
GUMMOW J: So I do not think anything can be approached in this case on the basis that in Australia this is simply something beyond present understanding, if one is considering questions of proportionality
MR GAGELER: Absolutely not. There are certain key features of the Act that are not challenged in our learned friend’s case. One is the requirement for a claim to precede enrolment. If you were to change that key feature of the Act - - -
GUMMOW J: Sorry, say that again, Mr Solicitor, I am not hearing you.
MR GAGELER: The Act has as a central feature the requirement for the making of a claim to occur before enrolment can occur. You might say that is the root of all the problems. There may be a completely different electoral design which would not require enrolment at all or which would have automatic enrolment, but - - -
FRENCH CJ: Or a claim able to be made on polling day, which is, I think, a position that occurs in some of the States of the US.
MR GAGELER: You could have, and there the rolls would – and I have not traced through the details – perform a different function, or at least a lesser function than they perform within our electoral process, your Honour, necessarily in those circumstances. But once that key element is accepted, and it is not challenged in the presented case, the need - - -
GUMMOW J: The new New South Wales system still depends upon claims. It is a question of when the claim is made and when it is deliberated upon, or not deliberated upon.
CRENNAN J: It is really to do with the processing and whether at some stage in the processing - - -
MR GAGELER: I have not studied the details of that. All I know is that the proposal is for automatic enrolment. You have to apply for a driver’s licence, but you get automatically enrolled for voting.
CRENNAN J: Although it has not been proclaimed, subsection (3) of section 30 indicates that it is possible to enrol during the period of any election, including after the issue of the writ. That would seem to contemplate including on the day of the election.
MR GAGELER: Yes. Your Honour, I am not going to be able to assist in the detail of this proposal.
FRENCH CJ: You were taking us to volume 4, I think.
MR GAGELER: I was only going to touch on it. Page 1131, and the passages here describe continuous roll update and its limitations. What you get from this, paragraphs 3.7 through to 3.18 are, according to paragraph 2 of the supplementary statement of agreed facts, agreed as an accurate statement of the AEC’s CRU activities during the period described and what you get from this discussion – I will take your Honours to the highlights – is that continuous roll update is really quite good at getting people who should not be on the roll off the roll, and that is through the objection process, Part IX, but it is not so good at getting people who should be on the roll, on the roll, because there is no compulsion to enrol apart from the prosecution that could be brought, and there is no automatic process of enrolment absent a claim.
CRENNAN J: Its greatest virtue, I guess, is checking the change of addresses.
MR GAGELER: Pardon, your Honour.
CRENNAN J: Its greatest virtue is tracking the changes of addresses.
MR GAGELER: That is right, yes, and knocking off people who are not at the old address, not so good at getting them on at the new address. What is said about line 20, page 1131 is:
Where data-matching suggests that an elector has become eligible or has changed their address, a CRU mail-out or field visit can result in enrolment or a transfer of enrolment. Otherwise, non-response can lead to the removal of the elector from the roll under the CEA’s statutory objection process.
Then paragraph 3.16 over at page 1134 really refers to the essential limitations:
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, or whose recorded details have so changed that a match if missed. Programs like CRU:
Then it is said in the last sentence of paragraph 3.18 that:
there remains an ongoing challenge for the AEC to re-focus its CRU activities on seeking to identify eligible electors who have never enrolled.
Your Honours, that is what I wanted to say about that supposed less restrictive means. So far as the plaintiffs make something of what I think they described as the potential for executive manipulation of the franchise in circumstances where there is a short cut-off period in a sense, given that the timing of the announcement of an election and the timing of the issue of writs, subject to certain constraints in the Constitution, is within the discretion of the Executive, one could expect amongst the myriad of factors that might be taken into account from time to time whatever advantage might be seen to be gained from the electoral system being amongst those factors.
Can we say this about it, however? The potential to derive an advantage from the early and automatic cut-off of enrolment would not arise at all if there were compliance, general compliance with section 101 of the Act, the mandatory obligation for continuous enrolment. To say, as our learned friends I think suggested, that the events of 1983, on one version of history, highlighted an invalidity that had always been there, apparently in the Act since 1918 and in its predecessor since 1902, highlights the extreme nature of the proposition that must be advanced on behalf of the plaintiffs.
In our respectful submission, the most that can be said about the events of 1983, on one view of history, is that they highlighted an issue that might be addressed in a number of ways. One solution, the 1983 solution, to provide a catch up, another solution which is really a continuation of the 1911 approach, the 2006 solution was the enhancement of compulsory continuous enrolment.
Finally, your Honours, and since this is the last point, one cannot ignore Sipka [1983] HCA 6; 152 CLR 254 at page 265, accepted as dicta, accepted as the dicta of three Judges only of the Court but dealing with section 45(a), the precursor to the present provisions, in a materially more restrictive form. It is said that:
It could not be suggested that s. 45(a) was other than a reasonable and bona fide exercise of constitutional power -
made against the background of the circumstances of the 1983 election recorded by Justice Murphy at pages 266 to 267.
GUMMOW J: May it not be the position, Mr Solicitor, that of course the timing provision in section 32 of the Constitution permits the Executive of the day to act in a particular timescale, and that cannot be complained about because the Constitution provides for it?
MR GAGELER: Yes.
GUMMOW J: To that extent, it seems to me that you are absolutely correct in what you have been saying as to your opponents’ submissions.
MR GAGELER: Yes.
GUMMOW J: But that, on the other side, the confidence that the Constitution places then in the legislature under section 51(xxxvi), involves the framing of legislation with a view to sections 7 and 24 which accommodate the possibility of that timescale under section 32.
MR GAGELER: Yes, and also the presence of section 47 that your Honour highlighted yesterday.
GUMMOW J: Yes.
MR GAGELER: Yes, all of that is accepted and, I believe, accommodated in the submissions we have made.
GUMMOW J: But it is then in that setting that we get to the debate that has been taking place as to the validity of these particular provisions that are challenged today.
MR GAGELER: Yes, and I do not disagree with anything your Honour has put, if the Court pleases.
HEYDON J: Justice Bell’s question.
MR GAGELER: Your Honour, I hoped that I had answered that in substance textually. It just involves adding a couple of words to the end of paragraph 56. If your Honours add to the end of the first sentence of paragraph 56 “after a particular time”.
HAYNE J: Sorry, what words?
MR GAGELER: “After a particular time”. So:
When the impugned provisions are viewed in context, it becomes apparent that they do not erect a “disqualification” from the franchise, even if it can be said that their practical effect is to prevent people from enrolling after a particular time.
GUMMOW J: Mr Solicitor, just before you disappear, a reference has been made this morning to subsection (4AB) of the new section 102. When we looked at item 41 of the 2006 we saw that your opponent challenges subsection (4), the new subsection (4).
MR GAGELER: Yes.
GUMMOW J: And (4AA) but not (4AB)?
MR GAGELER: Yes.
GUMMOW J: It seems, looking at the Act, looking at 2006 amendment, that items 20, 24, 28, maybe 51 as well, make changes to the overseas provisions?
MR GAGELER: Yes.
GUMMOW J: Overseas dependants in 94A, 95(4), itinerants 96(4). The timescales change there, too, is what I am asking you?
MR GAGELER: Yes.
GUMMOW J: Where would that leave the Commissioner if your opponent succeeded in getting some relief as to subsections (4) and (4AA)?
MR GAGELER: Can I put it this way? He would need to take advice.
GUMMOW J: When the Commissioner is commanded to conduct the elections according to law and the law would, if Mr Merkel got the relief he seeks, seemed to present a conundrum to the Commissioner. Do not answer it now.
MR GAGELER: Administrators face conundrums, your Honour.
HEYDON J: Granted you have had no time to consider this, you do not wish to consider it while debate continues and give us such answer as you can give when that debate is - - -
MR GAGELER: If I might. Your Honour is asking as to the flow on, the consequences of these core provisions challenged being invalid.
GUMMOW J: Yes.
HEYDON J: It would not be satisfactory if Mr Merkel’s sections went west but these other sections stood when Mr Merkel’s arguments would seem to bring them down.
MR GAGELER: I agree with that, your Honour. It is just a question of whether that can be addressed in the context of these proceedings.
HEYDON J: You say it is not open to the Court to make a declaration?
MR GAGELER: No, I am just saying it has just been raised with me and I am concerned that it may or may not fall within the scope of the matter before the Court, but certainly not within the scope of relief sought by our learned friends. Whether they have standing to challenge the other provisions is difficult to know. It is probably not a question of severance. It is probably a question of applying the same principle to severable provisions. Whether that can be done in the context of these proceedings, I do not know, but I doubt it. But if your Honour would permit me to give some consideration to it, I will.
FRENCH CJ: Yes, thank you, Mr Solicitor. Mr Johnson.
MR JOHNSON: If your Honours please, I do not propose to add in substance to what little we have said in submissions to your Honours. The position of the Australian Electoral Commissioner is that it submits to such order as the Court finds fit, save as to costs. It is not sought to join in the substantive argument that your Honours are hearing. The Electoral Commissioner did, however, put on an affidavit of Mr Dacey that your Honours would have seen and made some very short submissions. Those were directed to the prospect of the plaintiffs succeeding in the matter and, in particular, Mr Dacey, apart from outlining the election timetable, indicated in his affidavit what could be done by the AEC in the event that your Honours found in the plaintiffs’ favour to give the persons who would be affected by that decision an opportunity to vote.
I will not go through what Mr Dacey outlined in his affidavit unless your Honours wish me to, but the bottom line, if I can put it that way, was that if the Commission knew by the 6th, which is tomorrow, that it would need to consider the applications of the people affected. The Commission was in a position to field a force of people to deal with that, some 150-odd and it would be the Commission’s expectation that the task could be completed by the end of 18 August, which is the day before the closure of the period allowed for postal vote applications under section 185(5) of the Act. The result would be that the people would be on the electronic roll which was referred to in section 111 of the Act and so their votes could be counted and taken into account, even though they were not on the earlier certified lists.
GUMMOW J: What would happen as a practical matter to the elector who turned up at the local subdivision polling place?
MR JOHNSON: He or she would probably be informed that they should seek to cast a provisional vote and the Commissioner has also said, in the affidavit to which I have ascribed, that part of this 12-day task would be to write to the people whose applications were processed telling them that on polling day they would be able to go along and cast a provisional vote.
HEYDON J: What about overseas people, itinerant people, section 118(5) objections? What are your instructions have to say about that, if any?
MR JOHNSON: All postal votes and provisional votes and the like will be dealt with in the same way. In relation to itinerant persons, can I just seek some specific instructions on that, your Honour?
GUMMOW J: And overseas people, too.
FRENCH CJ: Thank you, Mr Johnson – you are getting instructions, all right.
MR JOHNSON: Thank you, your Honours, for that indulgence.
FRENCH CJ: Yes, Mr Johnson.
MR JOHNSON: Firstly, with respect to overseas voters, they would ordinarily be using the postal vote system and the last day for applying for a postal vote is the day after the 12-day period that we have described. The postal votes, when they came in, would then be evaluated according to the electronic roll, so the short answer in relation to the overseas people is that they would be dealt with in the same way as other postal vote persons.
GUMMOW J: And with the same terminus date. I think you said one day before.
MR JOHNSON: That is for applications.
GUMMOW J: Yes.
MR JOHNSON: But then the postal votes can come in for a period after, and then they are counted.
GUMMOW J: That is right. Yes.
MR JOHNSON: That is referred to in the annexure to Mr Dacey’s affidavit. Then with respect to itinerant persons obviously there are difficulties there because of the very fact that they do not have an address very often where they can readily be contacted. They are usually nonetheless enrolled in a division and the position would be that if an itinerant person presented, then the itinerant person would be asked to do a provisional vote. The same process would be engaged in as with the other provisional voters, in other words, checked against the electronic roll in a period remaining after polling. Unless there is anything further for your Honours.
FRENCH CJ: Thank you, Mr Johnson. Yes, Mr Mitchell.
MR MITCHELL: May it please the Court. We adopt our written submissions. We have provided the Court with an index which identifies the four propositions to which we would seek to address oral submissions, with references to the relevant paragraphs of our written submissions and also some decisions which I may refer to in the course of addressing those oral submissions.
The first proposition which we make is that there is, in this arena, an important distinction to be drawn between laws which require eligible citizens to enrol and vote by a particular time and in a particular manner in order to effectively exercise the franchise and, on the other hand, laws which in substance provide that a class of citizens is not eligible to vote at all. Roach, of course, was a case in the second category. There was nothing which Ms Roach and persons in her class could have done to gain the opportunity to vote in the election.
By contrast, in the present case, the plaintiffs had ample opportunity to vote in the election if they followed the procedure provided for by the Act in the required time. I would adopt what my learned friend, the Solicitor for the Commonwealth, has said in relation to the obligation and capacity to enrol forthwith under section 101 provisions for early enrolment from age 16, which I note in that regard in Western Australia the provision is only for 17-year-old enrolment. Also provision in the Commonwealth Act for pre-enrolment and provisional voting by applicants for Australian citizenship which, I note, does not have an equivalent provision in Western Australia.
The only point, in our submission, at which a provision for the close of rolls would amount to a disenfranchisement in the relevant sense would be if the law was such as to deny a substantial group of qualified persons the opportunity, and one might want to insert a descriptor before opportunity of whether it be reasonable or real or ample to enrol. One might have a case in which a law in form provided for time and manner of enrolment but, in substance, effected a disenfranchisement because it provided no real opportunity to do so for a certain class of persons.
While they decided in a very different legal and political context, the decisions in the United States do draw this distinction between provisions which totally deny electoral franchise to a particular kind of persons and provisions which provide for a reasonable cut-off date for enrolment or registration. At paragraph 46 of our written submissions we contend the decisions in the United States concerning the first and fourteenth amendments are of limited direct assistance in this case. That is primarily because those decisions are concerned with provisions protecting individual rights, whereas we are concerned with a limitation on legislative power derived from the text and structure of the Constitution, as Justices Gummow, Kirby and Crennan recognised in Roach 233 CLR 162 at paragraph 86. I need not take your Honours to it.
However, while the context is very different, the approach taken by the US Supreme Court as to this distinction is, in my submission, instructive. The distinction is drawn in the US for the purposes of determining what is referred to as a level of scrutiny to be applied to a challenged law and the verbal formula used is that where voting rights are subject to severe restrictions, then regulations must be narrowly drawn to advance the State interest of compelling importance.
However, reasonable non-discriminatory restrictions would ordinarily be justified by the State’s important regulatory interests. One finds that in a decision I need not take your Honours to, of Burdick v Takushi [1992] USSC 72; 504 US 428. A decision which I do want to take your Honours to, however, is that in Rosario v Rockefeller [1973] USSC 82; 410 US 752.
GUMMOW J: What will that tell us?
MR MITCHELL: That will show us that both the minority and the majority recognise the distinction between laws prohibiting voting and laws which provided a cut-off date, in this case quite a substantial cut-off date, for registration.
GUMMOW J: The United States is a country in which some millions of people are disenfranchised because at some stage in their life they were convicted of a felony, a sentence for which has long since been served. It is not necessarily an attractive place to go to for analogies if you are talking about franchise as we understand it in our country.
CRENNAN J: Also, was it not critical to the decision that the cut-off date was quite substantial but persons to chose to ignore the cut-off date?
MR MITCHELL: Yes. What I wanted to – do not rely on the result in this case as reflecting necessarily the position in Australia. It may well be that the better view is that the provision, if such a substantial cut-off date had been imposed in Australia, it would amount in substance to disqualification.
CRENNAN J: They are talking here in this case about the group were going to be – refer analogically – they would be the group who had more than two hours, say seven days, as a cut-off date but chose to ignore it.
MR MITCHELL: They were people who had what was described at page 758 of the report as an opportunity to enrol prior to the cut-off date. They could have done so but chose not to. Hence, if their plight can be categorised as disenfranchisement at all, it was not caused by section 186, which was the cut-off provision, but by their own failure to take timely steps to effect their enrolment. That was the majority decision. The minority, at page 765, after referring to what the majority had said, indicated that:
If the cutoff date were a less severe one, I could agree. Certainly, the State is justified in imposing a reasonable registration cutoff prior to any primary or general election, beyond which a citizen’s failure to register may be presumed a negligent or wilful act forfeiting his right to vote in a particular election.
All I seek to draw from this case is the validity of that distinction. Now, the consequences in the United States were quite different. The provision in that case was effectively for enrolment eight to 11 months prior to the elections and the debate was essentially one of the evaluative tasks that must be undertaken to determine what in substance the law provides for in terms of regulation as to manner and time or laws which in substance provide that a class is not eligible at all.
We would say that that approach is also consistent with the passage from Chief Justice Brennan in Langer v The Commonwealth [1996] HCA 43; 186 CLR 302 at 316, which we have set out in paragraph 9 of our written submissions:
What the Constitution requires is that the law prescribe a method of voting which leaves the voter free to make a choice, not that the law leave the voter free to choose the method of voting by which a voter’s choice is to be made.
We also would submit that his Honour Justice Isaacs in Kean v Kerby [1920] HCA 35; 27 CLR 449, referred to yesterday, acted consistently with what I am putting and it is important, in my submission, to understand the statements which were made at page 459, referred to yesterday, in their context. The case concerned a challenge to the election of Mr Kerby who had won the seat of Ballarat, according to the officials count, by a single vote. That produced a close scrutiny in the Court of Disputed Returns as to votes cast at Melbourne and Ballarat. The outcome of the Ballarat evidence is indicated at page 457 in the last sentence of the first paragraph where his Honour said:
It appears then, so far, that seven person duly qualified to vote and properly –
We would emphasise the word “properly” –
seeking to vote were, by official error, prevented from voting –
at all. These were all people had complied with the Act in all respects, but due to ballot papers not being available, or not being provided, being told that they were not able to vote. The question which his Honour then turned to, which was what was being addressed at 459, is identified in the first sentence of the next paragraph:
Here comes a very serious question, namely, what is the effect of this error, and whether it is permissible to receive evidence as to the intention of those electors to vote for the one or the other candidate.
That arose because, as one sees at point 5 of page 458, section 194 of the Commonwealth Act provided that:
No election shall be avoided . . . on account of the . . . error of any officer which shall not be proved to have affected the result of the election.”
His Honour then turned to consider in that context whether evidence of the voting intention could be received and the point which his Honour made at about point 8 on 459 was that:
It is, in my opinion, impossible to contend that a person who was refused a ballot-paper altogether is in a worse position to defend his right of voting than if he had received a ballot-paper and his vote had been wrongly disallowed. And in such a case how is he to protect his right of franchise, which is the most important of all his public rights as a member of a self-governing community? The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it.
His Honour was talking in the context of – by referring to “ballot” he was talking about the ballot paper and he was concerned with the context where electors, duly qualified, complying with the law had been denied the capacity to vote at all.
His Honour recognised the limitations in the principle which he applied when, particularly at 465, dealing with, at point 7 on the page, a number of ballot papers which were rejected because they did not comply with the law as to how preferential voting was to be undertaken. At 467 a ballot paper which identified the names of the candidates, but omitted the surname of Mr McGrath - there was a square opposite Kirby with the figure 2 square - - -
HAYNE J: What do we get out of all these facts, Mr Mitchell?
MR MITCHELL: What we get to is the principle, which his Honour identified at 468 which was at the foot of the page, point 9:
Acting on the same principles as with regard to the first, and in favour of conserving the franchise, so far as the law allows me, to every elector who intends to vote, I think I should, as before, resolve a doubt as to form in favour of the substantial right to vote.
So his Honour was clearly recognising that the law could prescribe conditions as to manner and form, even as in the case of the admitted surname where it was quite clear as to what the intention was, that it might require that the ballot be discounted. That is consistent, in my submission, with the distinction we seek to draw between a person who is eligible but excluded, despite doing everything open to them to exercise the franchise, and a person who fails to comply with the prescribed method for exercising the franchise.
So we say that this case falls into the first of the categories we have identified at paragraph 1 of the index and the second question identified in Roach that does not arise. One is still, of course, concerned to see that the law is subject to the limitation of sections 7 and 24 of the Constitution, that the product will still be a Parliament – parliamentary chambers whose members are directly chosen by the people.
That brings me to the second point which we seek to make and that is the determination of a time, if any, at which electoral rolls are closed prior to an election is a matter for Parliament, at least so long as the time for the close of the rolls does not in substance deprive eligible persons of the opportunity to exercise the franchise.
GUMMOW J: Which paragraph was this in your written submissions?
MR MITCHELL: .....proper if we deal with principally at paragraphs 11 to 19.
GUMMOW J: I think it was paragraph 47, was it not, under “Conclusion”?
MR MITCHELL: Yes, I was intending to address that - - -
GUMMOW J: I was not trying to hurry you on, but you use this phrase “amount in substance”. Well, that is the debate.
MR MITCHELL: The answer to that claim is that a person who is eligible has a right, an entitlement and an obligation to enrol forthwith. A person who is anticipating becoming eligible by reason of age has the opportunity to enrol from age 16. An applicant for Australian citizenship has an opportunity to pre-enrol, or make an application for pre-enrolment. In that context, one cannot say in this case or with this legislation that there is no real ample opportunity provided to eligible persons to effectively exercise their franchise.
What we come down to in a context where it is common ground that Parliament may require enrolment and common ground that Parliament may provide a date for the close of rolls shortly prior to an election and where the plaintiffs concede that Parliament could validly provide now for a close of rolls seven days after the date of writs, what the plaintiffs must do in that context is to discern an implication or something in the words “directly chosen by the people” that says that seven days is okay, three or less is not. We say that is the level of detail into which the Constitution simply does not descend. In that regard, we would refer to what his Honour Chief Justice Gleeson said in Mulholland v Australian Electoral Commission, [2004] HCA 41; 220 CLR 181 at page 188. His Honour said that it was:
A notable feature of our system of representative and responsible government is how little of the detail of that system is to be found in the Constitution, and how much is left to be filled in by Parliament.
His Honour goes on to give a number of examples as to fundamental elements of the electoral system which can have very large consequences for the composition of Parliament. His Honour then goes on at paragraph 9 to say:
That is a useful reminder of historical facts –
referring to a quoted passage –
that explain not only what the Constitution says, but also what it does not say.
I would encourage your Honours to read through to paragraph 10.
GUMMOW J: Are you taking us to Chief Justice Gleeson in Roach, paragraph 24?
MR MITCHELL: Yes, I have referred to that.
GUMMOW J: He talks about breaking rational connections between:
the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people.
Is that not another way of expressing your notion in substance? Questions of substance will always have to be directed to a particular law in the text that is before the Court.
MR MITCHELL: Yes. One looks at the text, one looks at its practical operation, and - - -
GUMMOW J: And a line has to be applied to that particular law.
MR MITCHELL: Yes, but the effect of the law in Roach was what his Honour the Chief Justice referred to at 174, as a “disenfranchisement of any group of adult citizens”, what your Honours Justices Gummow and Crennan with Justice Kirby referred to at pages 198 and 199 as the “legislative disqualification” of some citizens from the exercise of the franchise. That is not the territory in which we are now engaged. The plaintiffs were qualified. The plaintiffs had the opportunity to enrol, had the obligation to enrol. They chose for whatever reason not to do so, or were neglectful and did not do so. It does not matter which. They cannot be described as being subject to a “legislative disqualification”.
GUMMOW J: Now, you do you approach the case in the same way as the Solicitor-General for the Commonwealth in terms of step one and step two as he did this morning?
MR MITCHELL: With one - - -
GUMMOW J: I got the impression you might be accepting there was an impediment, hence, your reliance on substance which seemed to go to the Solicitor-General’s step two.
MR MITCHELL: The Solicitor does refer to “substantial impediment”, which I know is not language that is used in Roach or the judgment of Chief Justice Brennan which is referred to in the judgment of the plurality. We would not adopt that language because what is an impediment, or that characterisation of an impediment might be applied to any law which provides for the manner and time in which the franchise must be exercised, if it is to be exercised effectively.
The class of persons who are disentitled from voting by the Commonwealth Act is those who have not complied with the requirements of that Act as to the manner for effectively exercising the franchise. Now, is that a substantial impediment? That has been the debate in a sense, between the Commonwealth and the plaintiffs. We say one simply does not get to that point and one does not get to the second question in Roach because the question is whether there is a removal or a denial of any opportunity to cast a vote and one does not have that lack of opportunity in this case.
The reason I was taking your Honours to Mulholland was in part in response to your Honour Justice Hayne’s proposition that a premise of the plaintiff’s argument was that the phrase “directly chosen by the people” in 7 and 24 of the Constitution had a particular meaning. What Mulholland recognises, in the passage of the Chief Justice I had referred to and also in the judgment of Justice McHugh at page 207 of 220 CLR and the judgment of your Honours Justices Gummow and Hayne at page 237, is that the Constitution leaves many very important matters to Parliament to determine and, to quote from your Honours Justices Gummow and Hayne at paragraph 156 of Mullholland:
care is called for in elevating a “direct choice” principle to a broad restraint upon legislative development of the federal system of representative government.
GUMMOW J: That is talking about the development of the system of representative government, not voting at the poll, in particular. Not the imposition of restrictions, attending the exercise of a choice. That makes this case the first of its kind in this sequence of authorities, does it not, Lange, Mulholland? Mr Lange was trying to, in one view, disrupt the poll process. There was a section that said this was not to happen. That was upheld. Mullholland is all about the above the line and below the line system of ballot papers. It is all somewhat in a different dimension to the present case.
MR MITCHELL: I am not suggesting that any of those cases are directly on point.
FRENCH CJ: We are really in a larger field of discussion than Roach, are we not?
MR MITCHELL: Roach was a case where the legislation was perceived by the majority of the Court as cutting into the bedrock of the right to vote at all and depriving - - -
HAYNE J: It was a case about the qualification of electors.
MR MITCHELL: Yes.
HAYNE J: It is a different subject matter from this case.
MR MITCHELL: Yes. The plaintiffs, as we apprehend it, put their case on the basis that this is a Roach question and one addresses, is this disenfranchisement? Yes, they say. Then go to the question of substantial reason.
GUMMOW J: I think the Commonwealth rather accepts that approach to some degree, does it not?
MR MITCHELL: To the extent that it does, we would not. Your Honour, the third point relates to the book of comparative materials which we have provided to the Court. Behind tab 1 is the Australian practice set out in some detail and I have indicated at paragraph 3 what we take from that material. Firstly:
(a) At federation there was no Australian jurisdiction in which persons seeking to enrol at the date of issue of writs for an election had a capacity to vote in that election;
(b) That the position at federation existed in a context where there was no provision –
or at least that we have been able to find –
for early or provisional enrolment of persons in anticipation of eligibility.
No 17-year-old enrolment, no pre-enrolment for Australian citizens.
(c) For most of last Century, all Australian jurisdictions provided for rolls to close at the latest time when an election could be announced;
(d) The current Australian and international practice is variable and does not establish a minimum period for the close of rolls.
Of course one needs to be cautious in drawing comparisons that one takes into account all of the aspects of the electoral system. For example, in Western Australia rolls close eight days after the issue of writs, less restrictive than the Commonwealth. However, there is no provision for 16-year-old as opposed to 17-year-old enrolment, no provision for early or provisional enrolment by Australian citizens. The close of rolls on the announcement of an - - -
GUMMOW J: Is there any provision made in your State for residents who are outside the State?
MR MITCHELL: I believe they would be able to submit a postal vote at least. I am not sure if there are any arrangements for them to attend a polling station outside the State. There is also provision for, I think, early voting in Western Australia. The plaintiffs refer to technological advances since Federation. As we apprehend it is part of their answer to what we say about the position at Federation. If one looks at it, however, from the perspective of the opportunity which is given to electors generally to enrol, those opportunities for last minute enrolment at Federation were much less than existed in 2006 or exist today. In 1901 one could not hear about the announcement of an election on the radio, download a form from the internet and either fax it or scan and email it.
BELL J: I am sorry, but is it helpful taking us back to a time when there was no uniform female suffrage? Excluding South Australia and Western Australia women did not have the vote. I mean, where are we going, Mr Mitchell, with this historical analysis?
MR MITCHELL: We are looking at the term “chosen by the people” in its historical context, recognising that there can be developments. One is looking at the effect of what the Constitution provides for and entrenches and what it does not. One of the large debates at Federation was, of course, female franchise, which some States had - I am happy to say Western Australia was one - others did not. That was a subject matter that was left for the Commonwealth Parliament to determine, or pending that determination, for the States to resolve.
So when one comes to look as to whether sections 7 and 24 entrench democratic requirements to a particular extent, one has to take into account the fact that it is was enacted at a time when a lot of the electoral systems which it picked up by today’s standards would not be democratic at all. That perhaps takes me to the fourth point and that is whether sections 10, 31, 51(xxxvi) confer a purpose of power, that is whether the power must be exercised for the purpose of maximising the opportunity for the exercise of the franchise, subject only to the extent necessary to ensure that the choice is, so far as is practical, one made directly by the people.
One is looking to define the character of the law as purposive in that sense. It is hard to do so when provisions such as section 31 pick up as the default State provisions at the time which excluded many people from voting and the useful summary of the persons who were excluded is found in McGinty in the judgment of Justice McHugh at pages 242 to 243. In that context, it is difficult to draw from sections 10 and 31 a purposive objective of maximising the franchise when the laws that are initially picked up by section 31 hardly had that aim. We would also rely - - -
CRENNAN J: The debates about the colonial constitutions centred on expanding the franchise and having truly representative democracy by reference to the idea that the franchise should be detached from property and the expression was often used that working people should be part of the franchise. The debates from 1832 onwards were about extending the franchise more generally.
MR MITCHELL: Yes.
CRENNAN J: So I think you have not quite fairly described what the colonial constitutions were doing, because for their day they were considered very radical in terms of including a far greater group in the conception of the people, for the purposes of representative government.
MR MITCHELL: There is no doubt that the franchise was expanding. I do not for the moment suggest that a law which took us back to 1901 would be valid today. In Roach the Court looked to the history since Federation and drew the limitation, or the line which was said to be crossed in that case, by reference to that history. We say there is no equivalent history as regards provisions for enrolment, either at Federation or since.
Finally, your Honours, can I – there is actually one aspect of our submission which I need to correct, but before I do that, can I also refer to what your Honours Justices Gummow and Hayne said in Mulholland [2004] HCA 41; 220 CLR 181 at paragraph 159. I am referring to the judgment of Justice Dawson in Langer, where in the quoted passage on page 238, he says that:
the legislative power conferred by those provisions –
namely, section 31 and 51(xxxvi) –
is a purposive power: a power to make laws for the purpose of implementing s 24 -
which your Honours Justices Gummow and Hayne note was “a starting point for the development” of the submissions in Mulholland, but your Honours noted at the foot of page 238:
However, the view of Dawson J as to the “purposive” nature of the head of legislative power was not adopted by the other members of the Court in Langer and should not now be accepted.
Your Honour, there is just one matter that I do need to correct in relation to the position in the United Kingdom. We had sought to correct an error in the plaintiff’s written submissions at paragraph 73 where they referred to an 11-day pre-poll cut-off. In doing so in our written submissions at paragraph 43 we have made our own error. If I can correct that by reference to the Commonwealth’s book of foreign legislative material - - -
GUMMOW J: Sorry, paragraph 43?
MR MITCHELL: Paragraph 43 of our written submissions.
GUMMOW J: Yes.
MR MITCHELL: We have described the position as it was prior to 2007 and if I can take your Honours to the Commonwealth’s foreign legislative material bundle - - -
HAYNE J: Can we get to the bottom line, Mr Mitchell? What is the bottom line?
MR MITCHELL: Yes. The bottom line is that prior to 2007 an application would be dealt with. The enrolment would then take place either on the first day of the next month or if that day was less than 14 days from the date of the termination, the first day of the month following. The result was that, for practical purposes, if there were an election held on 21 August 2010, under the UK provisions an unregistered person would need to lodge an application by 18 July 2010. The position was amended in 2007 to provide for effectively a five-day cut-off pre-polling for new enrolments. If it please the Court, those are our submissions.
FRENCH CJ: Yes, thank you, Mr Mitchell. Yes Mr Merkel?
GUMMOW J: Mr Merkel, before you begin, can I raise this with you? If your arguments are successful and the relief you seek is granted, a very unsatisfactory state of affairs will follow, namely, we will have a sort of broken-backed election. The process will have been remedied with respect to people in the position of the first plaintiff and people in the position of the second plaintiff, but it will not have been remedied in relation to overseas voters, itinerants and in one or two other respects. Is it not a discretionary reason for not granting the relief you seek, that it is too narrow?
MR MERKEL: There are two answers, your Honour. The first is no. We issued a section 75(v) proceeding which had to be limited to - - -
GUMMOW J: I am sorry, a what?
MR MERKEL: We issued our proceeding under section 75(v) and we did not want issues of standing, so we had each of the plaintiffs represent a particular category.
GUMMOW J: Yes.
MR MERKEL: But, secondly, your Honour, we would have no difficulty as electors in issuing a writ and asking for that to be returnable if the AEC did not wish to do so, because as electors we say that they would have the standing to seek the same declaratory relief. Thirdly, your Honour, the
AEC is here and it could issue a writ for declaratory relief. But we could get instructions, we would believe, without any difficulty to have a writ seeking the same declaratory relief returnable before this Court or a section 75(v) proceeding returnable before this Court, but we say it is not a basis for refusing relief. In other words, the greater risk is for this matter to go ahead on a basis that is unconstitutional. If we are otherwise entitled to relief, the situation concerning overseas electors is resolvable and we would think that there should be no problem in that.
GUMMOW J: Is not another possibility for you to seek to amend as to declaratory relief?
MR MERKEL: Yes. We would have no trouble getting instructions to do that, your Honour.
GUMMOW J: As to the other items in the schedule?
MR MERKEL: Yes, your Honour.
GUMMOW J: Items, I think it is 20, 24, 28, the balance of 41 and, I think, it is 51.
MR MERKEL: Yes, your Honour.
GUMMOW J: Quite apart from 75(v) relief, the Commissioner is the meat in the sandwich, in a way. They are happy with the declaratory situation.
MR MERKEL: Would your Honour just excuse me for a minute?
FRENCH CJ: I wonder whether the - - -
MR MERKEL: Your Honour, we do have instructions from the first plaintiff in Court to take that course and seek leave to amend to raise the challenge to those items as well as the ones we have presently raised.
FRENCH CJ: Yes, well perhaps you could prepare a minute of the proposed amended relief and make it available to the Court after we adjourn. What would be the Commonwealth’s attitude to that, Mr Solicitor?
MR GAGELER: There would be no objection to that course, your Honours, and we could indicate our position on the particular additional sections challenged quite easily in writing. That is probably the best way of doing it.
GUMMOW J: I am sorry, Mr Solicitor.
MR GAGELER: I actually have a list of the provisions that would be effected. I have a position on all of them, subject to instructions, and I - - -
HEYDON J: But do you see any point of substance in respect of which these other provisions differ from the ones that Mr Merkel is attacking in his initiating process? I mean, is he able to win on - - -
MR GAGELER: I am speaking for myself at the moment. I am speaking beyond myself now. The best way of doing this is if I hand your Honour the two-page document that sets out the sections and I will indicate the position. It seems to us that section 94A(4), section 95(4), section 96(4), section 99B(2) are all parallel provisions indistinguishable from the provisions that are challenged by the plaintiffs. If the provisions currently challenged by the plaintiffs are invalid, these provisions would be invalid on the same basis. Then you move to section 102(4AB), 102(4A)(a), 102(4A)(b)(ii) and 102(4B). They all appear to be consequential provisions which would fall with the principal provisions. There is then section 118(5) which does not necessarily fall at all.
GUMMOW J: That is the pending objections?
MR GAGELER: Yes. It seems to me that there is no reason why section 118(5) ought in principal fall.
FRENCH CJ: The form of the declaration, if one were to be made, would be best directed, I suppose, to the amending Act rather than the particular provisions themselves.
MR GAGELER: Of course. I have identified the provisions, but it would be the item that relates to the insertion of that provision.
GUMMOW J: To these items, to those particular items in the schedule.
MR GAGELER: Yes.
FRENCH CJ: Yes. Thank you, Mr Solicitor. Yes, Mr Merkel.
MR MERKEL: Can I first deal with the submission my learned friend handed up this morning, that we do not object to that going in on the same basis as the other submissions that the - - -
FRENCH CJ: That is the eighth submission of the AEC?
MR MERKEL: Yes, your Honour, to the 2004 committee. Can I draw the Court’s attention to page 41, paragraph 6.4.5 where the AEC again restates its:
prime objective in maintaining electoral rolls is to achieve as accurate a roll as possible for the conduct of elections. One indicator of enrolment participation and completeness worth examination is the number of enrolments lodged in the week between the announcement of the election and the close of rolls.
Then the AEC sets out in table 14 the per cent of total enrolment that occur in that close of rolls period. Then goes on to comment:
The table illustrates that, as a percentage of total enrolments at the time, the level of enrolment forms processed at both events is identical. Therefore, if the close of rolls activity is any indicator, the quality of the rolls, insofar as levels of enrolment are concerned, was similar at both events. As stated above, the 1998 Federal Election was held very shortly after the completion of a national ERR, so the above figures provide an optimal result for a close of rolls in an ERR environment.
Then we can we go on to the next paragraph:
That said, and notwithstanding the apparent advantages of CRU over ERRs, it needs to be acknowledged that electoral events (and close of rolls) probably will always be needed to act as a catalyst for prompting enrolments . . . As a result the number of unresolved or unidentified potential enrolment transactions will continue to rise each year, unless intervention by electoral events – or AEC follow-up activities – occurs.
It is reasonable to assume from the foregoing that the large influx of enrolments that occurs at each close of rolls will contain many of these unresolved or unidentified people . . . The foregoing might also explain why the early expectations that CRU would reduce the level of enrolments processed at close of rolls have not eventuated.
It is very consistent with what we have been putting in respect of the other material. Can I go straight to the situation that arose in Roach. We say Roach was an important breakthrough in respect of not only just the principle, but we had put an argument, a proportionality argument based on Lange, but as was pointed out in the majority judgments in Roach, what was deprived in Roach was the participation in the election and even though a proportionality argument was that which was put, we say ultimately the participation itself, going to the heart of what my learned friend had accepted was the guarantee provided under sections 70 and 74, should have a test, whether it be called strict scrutiny, compelling justification such as that discussed by Chief Justice Mason in ACT Television. Can I just hand up some short extracts that I wanted to refer to from that case. I am sorry, we have whole the case copied, your Honour, but I only wanted to refer to two extracts from his Honour’s judgment. It is at 177 CLR 107, but the discussion - - -
FRENCH CJ: You could have let us know this morning. We would have brought down the books and saved a lot of trees for this.
GUMMOW J: Saved a lot of paper.
FRENCH CJ: Really, it is very extravagant.
MR MERKEL: Your Honour, I had thought I was only getting the two extracts, I am sorry about that. At page 143, your Honours, where his Honour says:
A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted. In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication.
We would say that that is an apt approach to the guarantee in sections 7 and 24 - - -
FRENCH CJ: That is analogical argument.
MR MERKEL: Yes, it is an analogical argument, and also section 92 would be the same analogical argument. But I also wanted, while I have your Honours there, to take your Honours to page 147 in the top paragraph where his Honour encapsulates the criticism that we make of the power that has now been conferred by the 2006 amending Act where his Honour says in the second line:
In my view, it is impossible to justify the validity of a regime which restricts freedom of communication in relation to the electoral process when the operation of the regime depends upon the making of regulations at the discretion of the Executive government according to unspecified criteria. The existence of the discretion leaves the Executive government at any given time with the option of invoking the Pt IIID regime or discarding it; in other words, the government of the day can decide which course suits it best. It is difficult to conceive of a compelling, even of a reasonable, justification for a regime restricting freedom of communication which confers such an advantage on the Executive government.
We say that precisely encapsulates the criticism that we make of what we have called the two-hour regime. Even in my learned friend’s submissions today he reverted to the 2007 election to show how many enrolments were able to be made in the close of rolls period - - -
FRENCH CJ: But they were purposes of the Executive. They are not essential to your argument, are they?
MR MERKEL: No, they are not, your Honour. But what we do say is what is essential to our argument is that we are talking of a two-hour regime, not, for example, a three and nine-day regime which operated in 2007. Could we next go to the way in which the evidence might be approached in the present case. We had the same problem in Thomas v Mowbray, which some of your Honours will recall, where there was great difficulty about a lot of ASIO material and there was a very careful specification to what use that material may be put. That was considered by your Honour Justice Heydon. Thomas v Mowbray is not on our list of authorities but is in the same volume as Roach, which is 233 CLR - - -
GUMMOW J: 307.
MR MERKEL: Yes, your Honour, 307 and the passage of Justice Heydon is at paragraph 645 at page 524. We say your Honours can approach the material that has been put before you with the same confidence as his Honour has and the same use as his Honour has set out at page 645.
HEYDON J: Mr Merkel, of course, in a sense yesterday’s debate which has trickled into today about volumes 1 to 5 can be bypassed, certainly by applying Thomas v Mowbray reasoning if one adhered to that reasoning but it does depend on giving notice. One has to know what is in the five volumes and, in particular, Mr Gageler needs to know.
MR MERKEL: I think, your Honour, my learned friend has been - - -
HEYDON J: This is all based on some theories of Justice Callinan and he said in all the odd-numbered sentences, if not the even-numbered sentences, that it is vital that notice be given to opponents.
MR MERKEL: Your Honour, we accept that, but it has been given because we had, in our submissions, identified precisely the passages - - -
HEYDON J: Very well. That is fine, I know what you are talking about. If that is all it is, I have no further problem.
MR MERKEL: We do not say - I think my learned friend has been on fair notice and particularly in regard to the matters dealt with in the last three or four lines he has had the opportunity, as he has done today, to call such material as he has wished. May I make something very clear. We have not been the ones who have been preventing any material coming forward. It was the initial restriction that was imposed that led to the problem which is now resolved and it is not suggested by our learned friend after the agreed facts have now been resolved by the supplementary statement that there is any further material upon which the Commonwealth wishes to rely. I do not wish to take it any further than that.
Could I next take your Honours to my learned friend’s reliance on the second reading speech. That is in volume 2 of the other material at page 646. We wanted to make a number of very brief comments about my learned friend’s reliance on the majority of the standing committee.
Firstly, we say, with respect, I think your Honour Justice Gummow pointed this out to my learned friend, the second reading speech does not pick up any of the reasoning of the committee and put it forward as a basis for adopting the 2006 amending Act. Indeed, it goes no further than saying the Bill contains reform measures arising from some of the government’s supported recommendations of the committee. It rises no higher than that. So we say that is not a sufficient way or justification for going to the committee’s reasons for the purposes of this case.
Secondly, we say, in any event, the committee cannot recite itself into power. The Communist Party Case was authority for the recitals in the Act cannot recite themselves into power, far more so with a committee’s recommendations so indirectly relied upon and, most importantly, we say the committee’s reasons simply do not withstand any objective analysis. I will briefly only make three points. The elimination of what was described as the period of grace is hardly a period of grace at all. It is not a period of grace for anything. It is a revocation of a seven-day period which, experience had shown, was essential for accuracy and completeness of the poll. But really, the point put forward by the - - -
HAYNE J: That brings me to do you accept that the premise for your argument is that which I identified to the Solicitor for the Commonwealth?
MR MERKEL: No, I do not, your Honour. Can I come back to that in a moment, your Honour?
HAYNE J: Of course.
MR MERKEL: What we wanted to say is that the committee’s first point about the catch-up is that it decreases the accuracy of the roll during the non-election period when the very purpose of the roll is its accuracy on election day. They have turned the inquiry around and sought to achieve an objective which is not the constitutional objective required by choice of the people.
Secondly, insofar as wastage of funds is concerned, the evidence is entirely to the contrary that the wastage of funds was clearly the problem confronting the AEC in spending money other than in an election context and at volume 4 at 1152 in paragraph 3.67, there is a table of how ineffective – if I can take your Honours briefly to it at 1152.
HAYNE J: Is this material to which we have previously been taken, or material referred to in the supplementary statement of agreed facts?
MR MERKEL: I think it is within the agreed facts, your Honour, and I only wanted to take your Honours to the point that - - -
FRENCH CJ: What paragraph are we looking at?
MR MERKEL: Table 3.4.
FRENCH CJ: I think you took us to that yesterday.
MR MERKEL: Sorry, 3.67 is the introductory paragraph, but what table 3.4 shows - and this goes to the committee’s saying we are going to prevent public wastage of funds - in 2004, prior to the 2006 amendments, the unit cost per enrolment transaction was $4.63. In the 2007 period when there was a greater challenge, as set out in 3.67, due to the shortened closing of polls, that went up to $14.27 and a change of $9.64. It is a bit like advertising for the Boxing Day sale in June six months ahead of time, your Honours. What is really being done here is the AEC is forced to try and engage in its activities in terms of expenditure at a time when the enrolments are simply not going to flow.
Finally, on the issue of fraud, my learned friend appeared to allow that to recede step by step. I have taken your Honours to the evidence in my submissions in-chief but we say there is simply no evidence that my learned friend has tried to take your Honours to that suggests the elimination of the seven-day period has any rational connection whatsoever to the elimination of fraud.
We say that if the committee’s reasons were relevant, and we say they are not, they do not withstand objective analysis. So we say, in the end result, what we find by the elimination of the seven-day period is an arbitrary and capricious regime which would satisfy my learned friend’s test. Could I last go to your Honour Justice Hayne, the question you asked of me a few moments ago. Your Honour, what we say is that we accept and do not challenge compulsory enrolment. We do not challenge, as a consequence of compulsory enrolment, a remedy within the realm of proportionality resulting from a failure to obey provided the remedy is designed to serve the end of “choice of the people” and section 101(7) does serve that remedy by not trying to make it an offence of absolute liability but to make it an offence only prosecutable by a proceeding where there is a failure to lodge a claim at any time prior to prosecution.
So it is truly remedial in the sense of it is designed to make an accurate and complete roll rather than to punish in a way that is unrelated to the end result of being on the roll on election day. We say that if the consequence of 101 was to result in deprivation of a right to vote, then the consequence would be defeating and fall within our category of submissions where the means chosen was prevailing over the end sought to be achieved which lies at the heart of our argument and the heart of the distinction between the case put by our learned friend and ourselves. We say on the fourth point, your Honours, Parliament must provide a further opportunity not just proximate, proximate to an election, what we say in response to that - - -
HAYNE J: But after the election process is begun by issue of the writ, was the proposition.
MR MERKEL: Your Honour, what we say, we do not work forward, we work back from the election day. We say it is the election day that determines the function of the means chosen by Parliament. It is a means to give a vote to a person wishing to vote and the opportunity to vote at the election and we say one goes back to no more than reasonably necessary to achieve integrity of the roll on the election day and it is that backwards approach that we say determines the outcome. So it is not a matter of not just proximate to an election.
If, as in the US cases, elections were on a fixed date, we would have a totally different situation, but it is the result flowing from the Constitution’s failure to fix a date. With respect, your Honour Justice Kiefel had raised about election rumours, the 1983 amendments came about after, as was set out by Justice Murphy, numerous statements by
the Prime Minister that there was to be no election and then without notice, a double dissolution was called. It is the existence of that power that lies at the heart of what we say is the problem with the 1986 amending Act abrogating.
HAYNE J: Let me take you back to this question of your premise, Mr Merkel, because it is critical. Your premise as last articulated was that the Parliament must allow enrolment to the last reasonable day before election, is that right? Is that your proposition or is it some other proposition? What is it?
MR MERKEL: No, it is more precise than that, your Honour.
HAYNE J: Yes.
MR MERKEL: The Parliament in choosing the means to achieve the integrity of the roll necessary to give effect to “choice of the people” in the Constitution must choose a means that is no more than necessary in respect of preserving that integrity and not depriving people unreasonably or without necessity of the opportunity to enrol and vote, because enrolment is for the purpose of voting.
What we say is the essential problem underlying what my learned friend’s argument is, is enrolment has become a cause in its own right, not a means to an end and that is the essential difference between ourselves and the Commonwealth in this case. If your Honours please, that is all that we wish to say in reply. We will prepare an amended application if we might and we can deliver it to the Court fairly quickly.
FRENCH CJ: That would be early this afternoon?
MR MERKEL: Yes, your Honour.
FRENCH CJ: Yes, and Mr Solicitor, you will, subject to getting instructions, make some response to that in writing?
MR GAGELER: Yes, I will. I have indicated the substance of the response, but I can do it more formally in writing as well.
FRENCH CJ: Yes, but you will need to confirm the position, I imagine. Yes, all right, thank you. The Court will reserve its decision and I hope we will be in a position to give a decision tomorrow at some time, otherwise the Court adjourns to 10.15 on Tuesday, 24 August.
AT 12.26 PM THE MATTER WAS ADJOURNED
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