Murphy & Anor v Electoral Commissioner & Anor [2016] HCATrans 111 (12 May 2016)

Last Updated: 12 May 2016

[2016] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M247 of 2015

B e t w e e n -

ANTHONY JOHN MURPHY

First Plaintiff

SUSANNA IRENE SCURRY

Second Plaintiff

and

ELECTORAL COMMISSIONER

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 MAY 2016, AT 10.01 AM

(Continued from 11/5/16)

Copyright in the High Court of Australia

____________________

FRENCH CJ: Please call the part-heard matter. Yes, Mr Merkel.

MR MERKEL: If the Court pleases. There were just three matters that were raised yesterday I would briefly like to go back to. Your Honour the Chief Justice at page 31, 1340, raised the question of section 103A(5) and B being facilitative and how that accords with our argument that they should fall, as opposed to 102(4) which is a mandatory suspension, and we say the facilitative power on the Electoral Commission under those two sections to, of his own motion, in effect, carry out enrolments and transfers has a suspension period, and for the same reasons we say the suspension period falls. In the other sections it would fall under sections 103A and 103B and if we were wrong on that we would say that Parliament would clearly have intended they would fall with the other sections so that there would not be a suspension period operative under the Act.

At page 17 at 720, your Honour Justice Kiefel raised with me the question of the decision that the Court actually made in Rowe and whether it is correct for us to use the characterisation of disenfranchisement as underlying that decision. The issue in Rowe was the expansion of the suspension period, and the disentitlement to vote that that gave rise to. The issue in the present case is the suspension period itself, and the disentitlement that it gives rise to, the disentitlement to vote.

FRENCH CJ: It is the continuance of the suspension period that is in issue. In Rowe, there was an extension of the suspension period, which was a recent change. Here, the mere continuance of the suspension period is said to cause it to become invalid by reason of external factors.

MR MERKEL: That is a fair characterisation, your Honour. What we say is that the first question – does the suspension period give rise to a disentitlement to vote – is answered in the same way in both instances. The fact that it is the reduction of an opportunity, as opposed to the elimination of that opportunity, really goes to the second question, but both give rise to a disentitlement. I think your Honour Justice Kiefel raised the question of whether “disenfranchisement” was the right word to use.

Can I just give your Honours references – I will not take you to them. In Rowe, your Honour the Chief Justice at paragraphs 3 and 24 described the impugned provisions in that case as giving rise to a disentitlement to vote. Justices Gummow and Bell at 154 and 160 analysed it in terms of disqualification, and Justice Crennan at paragraphs 381 and 384 characterised it as “disentitlement or exclusion”. In each instance, it was - - -

KIEFEL J: I think the word “detriment” was also used. I think there is a combination of words used – that was really what I was asking you yesterday. I think at 78 the Chief Justice referred to “significant detriment” and Justice Crennan, in the passage you were referring to, referred to it as both a detriment or disqualification.

MR MERKEL: That is correct, your Honour. What I am about to go on to say is that there are two distinct concepts which arise at two stages of the inquiry. The first is disqualification and disentitlement and is that for a substantial reason and the second on proportionality is the detriment that is caused by that disqualification proportionate to a legitimate end. Just staying at the first – and we say that the question arises in that different context and disentitlement covering the group that I have described is the consequence of the suspension.

Going to Roach, again I will give you the paragraphs if your Honours please - Chief Justice Gleeson described the circumstances there in paragraph 12 as an “exclusion” and 24 as a “disenfranchisement”. Justices Gummow, Kirby and Crennan described it in paragraphs 80 and 82 as a “disqualification” and in paragraph 83 as an “exclusion”, and Justice Hayne at paragraph 131 referred to it as an “exclusion from voting”.

So, we say, at the first step in both Rowe and in the present case the question is do the impugned provisions give rise to a disentitlement, disqualification or exclusion from voting – disenfranchisement, it matters not what the wording is, for persons who are otherwise entitled to enrol and vote.

Then we fall to the second question and ask, if the first question is answered yes, is there a substantial reason for it? And we say that the holding in Rowe, which is critical - and this comes to the point your Honour Justice Kiefel raised with me – we say the amending Act in Rowe was found to be invalid because the detriment caused by its practical operation was disproportionate to the benefits sought to be achieved. Your Honour the Chief Justice referred to that benefit as a smoother electoral system.

Your Honour applied that test, we say, at paragraphs 25 and 78. Justices Gummow and Bell referred to the detriment as going beyond any advantage sought that related to the integrity of the system. That is at 167. Justice Crennan at 384 said the detriment cannot be shown to be necessary or appropriate to the object advanced of integrity to the rolls. We say they are the two questions that arise in Rowe and they are the same two questions that we seek to address in the present case.

KIEFEL J: A question might be detriment to what. Is it detriment to the franchise generally?

MR MERKEL: We would say it is the detriment that flows from the deprivation of entitlement. That was accepted in Rowe as a detriment following from the mandated popular choice by sections 7 and 24. So the loss of entitlement, disentitlement of a person who would otherwise be entitled is the detriment of itself. That is how we would analyse Rowe and we would apply it in the present case.

KIEFEL J: Yet it is not regarded as an individual right.

MR MERKEL: It is certainly not regarded as an individual right, your Honour.

KIEFEL J: So regard must be had to the franchise more generally.

MR MERKEL: It is the franchise more generally and, as we mentioned yesterday, it is the associative aspect of it where the people and represented democracy requires the choice of the people on polling day and that is the franchise that is said to be protected in both Roach and Rowe. It was not a quantitative protection; it was a qualitative protection.

KEANE J: Is it the people of each division? Do we speak of “the people” as being “the people” of each division?

MR MERKEL: Sections 7 and 24 have their own role. In respect of the Senate, it is the people of the State and in respect of the House of Representatives it is the people of the division.

KEANE J: It is the people of the Commonwealth, is it not?

MR MERKEL: They combine to be the people of the Commonwealth, your Honour, but that is why we took your Honours yesterday to sections 7, 24, 29 and 30. The Senate picks up the people of the State and the House of Representatives picks up sections 29 and 30 with one vote in divisions which could be the whole of the State or could be part of a State but there were to be divisions in each State not overlapping outside of the State, so the people of the Commonwealth is the combined people of the divisions for the House of Representatives and people of the States for the Senate.

KEANE J: But we do not speak of the people of Wills, do we?

MR MERKEL: We do not speak of the people of Wills but we do say, your Honour, that the constitutional division that is created is the people of the Commonwealth in respect of the House of Representatives are constituted by the people who vote in each division.

KEANE J: And that is affected – that comes about because the Commonwealth Parliament makes laws relating to the direct choice by the people of the Commonwealth. Even the creation of the divisions is the work of the Commonwealth Parliament in giving effect to the franchise generally, as a system, if you like.

MR MERKEL: Well, your Honour, that is correct but one needs to, with respect, unbundle that by reference to the Constitution because section 7 is self-contained because it requires the Senate to be “composed of senators . . . directly chosen by the people of the State”. Thus my geographic problem yesterday when if someone moves on an interstate transfer they are required to vote in the State in respect of which they are not of the people, but it is sections 24, 29 and 30 which combine for the House of Representatives to require Parliament to pass an Electoral Act in respect of the choice of the people of the Commonwealth in the divisions required to be created to give effect to section 29 and the one vote in section 30, bearing in mind divisions cannot overlap outside of each State. It is the cumulative effect that we get to in section 7 for “people of the State” and section 24, “people of the Commonwealth”.

KEANE J: Section 29, for example, does not speak about the people of the divisions.

MR MERKEL: But it does talk, your Honour, about divisions, the representatives that “may be chosen”. We say that takes you back to section 24 and the people of the Commonwealth must necessarily be people choosing in the electoral divisions required to be created under the Constitution.

KEANE J: But what is in contemplation in these provisions, if one looks at them all together, is that the Commonwealth Parliament will introduce – will create a system to give effect – a system to enable direct choice by the people of the Commonwealth.

MR MERKEL: That is correct.

KEANE J: That means that the Commonwealth Parliament determines what the system will be, and that is not concerned just with voting, as appears from section 7, which talks about “directly chosen by the people of the State, voting”. Voting is perhaps an aspect of the system of direct choice by the people, but it is an aspect of it. There are other aspects. There is the creation of the divisions for the purposes of section 24. There is the making of provision for qualifications for voters. There is the provisions for scrutiny, declarations of the polls, all with a view in the end to providing a government. So that to say that “chosen directly by the people” is talking about just the act of individual voters voting on polling day is to take too narrow a view of what is contemplated by this series of provisions.

MR MERKEL: But, your Honour, I have no quarrel with that whatsoever. We accept that absolutely. What is required for the choice of the people is an entire process reflected in the current Electoral Act and reflected in the 1902 Act. What your Honour has just put to me was actually described very well by Justice Gummow in McGinty – I will just give your Honours the reference, but at page 283 his Honour set out the whole raft from a learned commentator that his Honour referred to, a whole raft of matters which your Honour has just described to me as part of and inherent in the electoral process.

We are not here challenging the electoral roll or the electoral process. We are challenging only one aspect, which is the suspension of enrolment. We say because that gives rise to a disentitlement, the question is, is that for a substantial reason? What your Honour says is completely correct, but what we say has been held, and found by this Court in Roach and Rowe, is that when one comes to a law that has the practical effect of disentitlement, that gives rise to a constitutional limitation on the broad discretions that your Honour has just described to me, and the broad discretions that are undoubtedly inherent and left to Parliament to work out, but subject to a constitutional limitation. The question in this case is whether that constitutional limitation has been transgressed by the suspension provisions.

KEANE J: In determining whether there is a reason, as you say, for the limitation on the right to enrol, or the limitation on enrolment, as a systemic feature, a feature of the system, the question whether there is a substantial reason in terms of the constitutional validity of provision – that question is to be addressed by looking at the whole of the system; the smoothness and efficiency of voting, the efficiency and speed of scrutiny, and the announcement of the results. One has to look at the whole thing rather than just the actual exercise of the vote by individuals.

MR MERKEL: We absolutely agree with your Honour, and that is why we have unbundled the two questions. One is, is there a disentitlement – is that the practical consequence of the impugned provisions; and the second is, is it disproportionate – the detriment has been established, and is there a countervailing advantage. If all the matters that your Honour has put to me constitute a countervailing advantage based upon the agreed facts and the evidence, then it will not be disproportionate. We follow your Honour’s path - - -

KEANE J: Do you accept the view expressed by Chief Justice Brennan that enrolment is a necessary and sufficient qualification for voting?

MR MERKEL: We have no quarrel with that, your Honour. We say the structure of the Act, which we accept implicitly, is the enrolment as a precondition to a vote, and qualification for enrolment. We have no quarrel with the conclusiveness of the electoral rolls on polling day.

KEANE J: So is your case that any requirement for enrolment prior to the act of voting is invalid?

MR MERKEL: We have no challenge to a requirement of enrolment prior to the act of voting, if that is what your Honour has put to me, we accept that. It is part of our case that - - -

KEANE J: Well, then, it is just a question of how much time is required to elapse between enrolment and voting.

MR MERKEL: That is correct.

KEANE J: If that is the question, if it is just a question of how much time, how do you say that the Parliament’s choice is denied it by the Constitution?

MR MERKEL: Your Honour, because in Rowe the decision was that the expansion of the suspension time was invalid because there was no substantial reason for it. It comes down to the facts, your Honour, if there is a substantial reason of the kind put forward by the Commonwealth, then the Commonwealth must win but that has to be derived from the facts not derived from the hypothetical analysis of how much time might be needed, divorced from the facts.

I will take your Honours to the facts in a moment but we say the facts here establish that there is no rational connection between the commencement of the period and the need to have rolls. In that process, the nominations for pre-polling and for polling day, there is no rational connection and it is to those facts that we say one must go to get an answer to your Honour’s question. It is not a conceptual issue. It is a factual issue because we are looking at the practical consequence of the suspension period, not a legal consequence of it because it is the practical consequence that is the detriment.

So, if I can go to those facts. I just wanted to correct something I did say yesterday. I think your Honour Justice Keane at page 20 at 835 asked me about the Rowe decision, would it have the consequence of invalidating the 2007 election. In fact, the 2007 election was held on the basis of the Rowe amendments which were found to be invalid for the 2010 election but it was not a question in Rowe nor is it a question in the present case whether invalidity we are now seeking would have any consequence for any previous election because it clearly cannot.

KEANE J: The effect, if you like, of the decision in Rowe is that the suspension period which you are presently challenging was constitutionally valid. Indeed, in your argument you accepted as much.

MR MERKEL: Sorry, could I - - -

KEANE J: In your argument in Rowe you accepted as much that the suspension period that is presently in place passes muster constitutionally.

MR MERKEL: No, I do not think that is correct, your Honour. I think it was not in issue in Rowe nor could the facts have put it in issue because the practical consequence of the suspension period itself and the evidence and the material before the Court in this case is not the same as in Rowe. What we said in Rowe, and I may stand corrected on this, was that the validity of the suspension period was not in issue. Our sole question was, was the amending legislation invalid because of it bringing forward the suspension period in respect of enrolments and transfers?

That was the narrower question in Rowe but the concession or any concession about validity of the suspension period itself could only be made in a hypothetical situation because the consequences of the suspension period itself were not in issue and were not evidence in Rowe. They are now on agreed facts before the Court.

So, it is the practical consequence of the suspension period that is in issue in this case and nothing in Rowe really bears upon that other than the principles in Rowe we say apply because – the Commonwealth disagrees with us on this, we say the principles and the issues arising are on all fours – albeit that the second question is there a substantial reason for the suspension period is entirely different based on an entirely different set of facts. But I want to go to those facts if I may.

KIEFEL J: Just before you go into the detail, as an overview, when you speak of the practical consequences of the impugned provision, as I understand what you were putting yesterday it is that if one removes the impugned provisions the Electoral Act can operate effectively with them.

MR MERKEL: Yes, we say that, but that is not a necessary element of our argument about invalidity.

KIEFEL J: No, you go further. As I understand it, what you are saying is without them the Electoral Act can operate more efficiently in the sense that it can allow for a larger number of people to be enrolled. Is that right?

MR MERKEL: We put it at two different levels, your Honour. The first is we say the suspension provisions, on the Rowe analysis, are invalid and whether the Act works with or without them is not the question. The question relevantly is whether there are other alternatives, not the alternative of the Act without the suspension provisions. That is a discrete question that does not require us to answer whether the Act works without the suspension provisions but at the severance level, which the Commonwealth puts, we say there is a short answer and that is that the Act works perfectly well without the suspension provisions.

There is no need for severance because if this Court upheld our case in this case, which would be based upon the Rowe questions being answered in our favour without asking whether the Act works without the suspension provisions, but when it comes to severance we say that the suspension provisions are discrete in their operation. If removed from the Act they leave the Commissioner’s obligation to enrol and transfer, continuing to do so without delay, but so far as practicable, there will obviously be a point under the current system where the Commissioner will say it is no longer practicable to be able to enrol or to transfer enrolments and have the rolls ready on election day and the Act will work, as it did in Rowe, or could work as in Rowe.

It could have a cut-off date, which is the practicable date determined by the Commissioner beyond which he can no longer have rolls ready. He could have, she could have a proclamation under section 285 which would have a supplementary list or a notebook roll. The Act is quite flexible about the number of rolls and the way in which there will be an electoral roll, as opposed to the certified list at the close of the rolls available on election day and we say there is no problem about that.

Obviously at some time in the future – not now because of the electoral cycle we are in – the Parliament would take into account the Court’s decision, if it were in our favour, and work out a framework to deal with the Court’s decision. But we say they are two different questions.

So that is how we say it would operate but I think I need to go, to make good that argument, to the practical consequences of the suspension period. Can I do it in stages? The first step - can I refer your Honours to the evidence and I will not take you there – this is of the special case - paragraphs 22, 46, 132 and 134 the evidence clearly establishes that the holding of an election is a significant catalyst to enrolment and transfer. In fact, at 132 the Electoral Commission itself called for same-day enrolment, but that is because the evidence establishes it is during the election period that the greatest demand for enrolment and transfer occurs.

That is when the public turn their minds to it and the anomaly and arbitrariness that we rely on is it is during the very period when enrolments and transfers are at their highest that the cut-off point comes and they are suspended.

We say it is that anomaly and that arbitrariness that the evidence establishes. On the practical consequences, can I take your Honour to the special case at paragraph 113? Of course, on the question of integrity, objections are also suspended so there is a perpetuation of any incorrect enrolments. But I want to take your Honours to the tables. Firstly, at paragraph 113, table 13. This is the analysis of claims lodged during the suspension period.

I should say, in respect of your Honour Justice Kiefel’s question about how the Act might work, the Electoral Commissioner was a party to the proceedings and has not put any evidence before the Court that the declaratory relief that we seek will cause any particular difficulty, assuming that relief is granted before the close of the roll. So, it is not as if there is evidence before you that would give rise to any particular problem. Of course, there will be some practical issues because this is a new matter but - - -

KIEFEL J: Well, delay and cost would be the kind of thing.

MR MERKEL: Yes.

KIEFEL J: I mean, did the exercise after Rowe cost? Is there any information about that?

MR MERKEL: I do not think there is a cost analysis but it certainly would have cost. But, your Honour, bear in mind the question is bringing forward the process, not creating a new process, so all that would happen is enrolments and transfers would be processed as they would have to be after the election before the election.

KIEFEL J: But, there is information in the special case about how many people are required to be employed to achieve these results.

MR MERKEL: Yes. To have that process brought forward, there is information about that. But, of course, offsetting that would be those people will not have to do that job after the election. We are not saying that this is a seamless transaction because, obviously, this question would not arise in the same way if we were outside of the electoral cycle, but we are not. But going back to table 13, enrolment claims, we have got all the claims between 2004 and 2013. Can I take your Honours to the bottom right-hand corner of each year? At 2004 – these are claims received during the closure period - 164,000 the 2004 election, 143,000 the 2007 election, 161,000 the 2010 election and 228,000 for the 2013 election – all not able to be processed because of the suspension period.

Can I then jump ahead to table 14, which breaks down the claims for new and updated enrolments? Your Honours will see the break-up between “enrolments” and “enrolments updates”, which would be change of name, change of address, and information of that kind. The new enrolments – just going through – 60,000 for 2004, 48,000 for 2007, 44,000 for 2010 and 52,000 for 2013, and your Honours will see in the adjacent column large numbers of enrolment updates.

Your Honours will recall I took you to the incorrect enrolments, which gave rise to the provisional votes having to be counted in accordance with Schedule 3 – 202,000 at the last election. The very problem of creating declaratory votes is exacerbated by this process of suspension. That is how irrational it is to the object of enrolment inaccuracy, and this is about accuracy, so 175,000 people in 2013 were prevented from updating their claims to be in the correct place and be correctly recorded on the roll, giving rise to the kind of chaos of 200,000 provisional votes.

NETTLE J: They were not prevented. They were just prevented from doing it out of time, contrary to their obligation under the Electoral Act.

MR MERKEL: Your Honour, for most, that is correct. For many, it is not. The arbitrariness was shown up by the second applicant yesterday, Ms Stewart. She is moving address and will have her 30 days come up in the suspension period, but cannot vote.

NETTLE J: What percentage would that entail?

MR MERKEL: Very small, your Honour, but there are anomalies inherent in the arbitrariness of the suspension period. If one were to be fair and give rise to her entitlement to vote, she should be entitled to vote at her previous address because she has a connection with it, and has not got a requisite connection with the past address – she is disqualified altogether.

We went through that argument that your Honour put to me now in Rowe, and the majority accepted that the failure to comply with your duty in the context of this Act was not a disqualifying factor from saying you are disentitled. In other words, the disentitlement came from the Act plus their failure to comply with the duty, which was not a duty that gave rise to a consequence upon them being able to enrol.

Upon enrolment, they were no longer liable for prosecution, and the same with the 103A and 103B powers of the Commissioner to enrol; once the Commissioner enrols a person, they are no longer liable to prosecution. Whilst what your Honour put to me is correct, it was not accepted by the majority – in fact, rejected by the majority in Rowe – as a factor that did not result in disentitlement. We say that that is part of the ratio - - -

NETTLE J: I think that is what Chief Justice Mason used to call “a balance of persuasion” rather than authority, given the different reasons of the various judges.

MR MERKEL: With respect, your Honour, that would require a certain analysis of the reasons, but we say each of their Honours – we would add, correctly – in the majority said that does not mean that there is no disentitlement.

NETTLE J: Thank you.

MR MERKEL: I should say that there are added reasons in our submissions why we say the Court should not approach that as disqualifying. It would be a superimposed punishment for an offence that is eliminated upon, in practical terms, application for enrolment. It would be an odd result for the Court to say they are not disentitled because of their own conduct, as opposed to the reality – their disentitlement comes from the operation of the Act. We say it would be an inversion of the proper analysis here.

NETTLE J: I did not understand we were considering individual rights in this case.

MR MERKEL: No, we are not considering individual rights; we are considering limitations on the Parliament’s power to disentitle people to vote without a substantial reason.

NETTLE J: Well, this is what I find really odd. Rowe and Roach were complaints about parliamentary action. Yours is a complaint about parliamentary inaction and it would seem to me that a consequence of the linkage of the invalidity to the changing factual circumstances, both the legal and technological factual matrix, means that Parliament, if it is going to prevent its legislation from falling into invalidity, has to maintain some sort of monitoring of those circumstances, look at the sort of facts that we are looking at here and then act, with us as some kind of monitoring mechanism to see whether they fail to act, that is what you seem to be putting to us.

MR MERKEL: No, I am certainly – if I am putting that, your Honour, it is not my intent.

FRENCH CJ: You cannot just jam this into Rowe and Roach, it is fundamentally different, it seems to me.

MR MERKEL: Your Honour, the part that is fundamentally different is the second question of whether there is a detriment or whether the detriment of disentitlement has a substantial reason for it. Your Honour has built into what your Honour has put to me an assumption that the constitutional validity of previous sections has been determined and accepted, but that is not the case. Longevity cannot of itself mean validity, and we say the question of validity of the previous sections has never been considered, in the same way as it was not a relevant question in Rowe.

That meant the 2007 election was held under invalid provisions, but that did not operate as a factor that directed the Court to different questions than those that arose in Rowe. The same questions, we say, arise here. So we do not accept, with respect, the starting point of what your Honour has put to us, nor can it be right that longevity or failure to challenge - - -

FRENCH CJ: But it is linked to contemporary factual circumstances. It is the agreed facts in the special case book that provide the foundation for your contention as to invalidity.

MR MERKEL: Yes, your Honour, but the reason why - - -

FRENCH CJ: And they are facts which of necessity change with the passage of time.

MR MERKEL: Correct, your Honour, but there is an anterior starting point and that is that if there is a disentitlement, if there is not, we fail, but if there is a disentitlement, then the second question is, what are the practical consequences of it? That directs you to the facts now, not the changing facts, but the facts now. If there was - - -

GORDON J: The problem with that submission, Mr Merkel, is this. This morning in response to questions from Justice Keane you accepted that enrolment was an essential prerequisite or precondition to entitlement to vote. That presupposes, as I understood it, that there would be some suspension period. At the moment the argument is, well, the suspension period that is currently provided for in the Act is invalid but what are we testing it against, a suspension period that ends when, something that is chosen by who?

MR MERKEL: Your Honour, the question of whether there is a substantial reason stands or falls on its own analysis, part of which is is there an alternative means by which the same objective - - -

GORDON J: What is your alternative means?

MR MERKEL: We have set out in - - -

GORDON J: No, no, explain to me – on the assumption this morning that the propositions you accepted from Justice Keane are correct, when do you say that the alternative suspension period should be?

MR MERKEL: The alternative means - and my learned junior, Mr Tran, will address your Honours on this – are what has, in fact, happened in Victoria, New South Wales and Queensland. We rely on those as alternatives and he will address your Honours on why that is so and, we say, that answers your Honour’s question but we do not say the alternative means are to look at the Act without the impugning provisions because that is not the correct, conceptual inquiry.

So, we want to keep – divorce those two separate questions because the Act without the suspension provisions is not the alternative we have put forward. What we have said is it will work without the provisions but that is not the question that is required to be answered.

KIEFEL J: I thought you said yesterday that your view was that at most the Electoral Commission requires a week?

MR MERKEL: I will take your Honour to the evidence based upon past problems of this nature and the material but what I, if I said at most a week, what I would intend to mean is that on the evidence, if the Commissioner in the present context cut off a week before because of practical considerations, according to the Commissioner, and his or her judgment, meant that cut-off time was necessary, that would be okay. But that is not the alternative we put forward, your Honour.

KIEFEL J: But approached in this way by reference to evidence, the point which arises from what Justice Gordon has put to you is what is the role of this Court to sit in judgment on practicalities of these matters and why is that not, as the Chief Justice has pointed out - are you suggesting this is an obligation of Parliament to keep this under review and if it does not this Court has evidence put before it to say this can be done more efficiently?

MR MERKEL: Your Honour, I can only go back to the questions to be asked - is there a substantial reason requiring examination of the practical consequences of the disentitlement? It is for Parliament to accept its limitation and it is for this Court to ensure Parliament acts on that limitation.

KIEFEL J: Speaking of that limitation and the way in which you frame the questions, which shifts somewhat in your written submissions, at the top of page 9 of your written submissions, I take it as a lead-in, under the heading “Justification” - that is paragraph 29 - to the argument of proportionality, you say:

Once a burden upon a constitutional freedom is identified “[i]t is, then, incumbent upon [the governmental party] to justify that burden”.

So, on that approach, what you are looking at and this is a somewhat different approach is any burden on a freedom, which I take to refer to the franchise, requires a justification ascertained by proportionality analysis. That is a somewhat different approach on one view from that undertaken in Rowe.

MR MERKEL: Your Honour, we, in our submissions, refine that to say the burden is the detriment.

KIEFEL J: Any detriment?

MR MERKEL: No, sorry.

KIEFEL J: But if you are drawing – my point is if you are drawing an analogy, as you are there, to the implied freedom it must be accepted that the burden you are speaking of is any burden. We are not talking about quantitative or qualitative, we are talking about any burden requires justification. So, we are not actually – on this approach it is quite different from the evidential approach you were referring to, any burden suffices to require a justification.

MR MERKEL: Your Honour, we have in our submissions before your Honours descended down to the next level and that is we substitute for the word “burden”, “disentitlement”. That is, accepted as a detriment. Then we get into a proportionality analysis, as the Court did in Rowe, and ask is it disproportionate? Is the detriment proportionate or disproportionate to the advantage sought to be achieved by the means put forward – for the ends put forward by our learned friends.

We say that is the analysis which is dictated by Rowe and, with respect, the Joint Standing Committee on Electoral Matters of Parliament, does review every election. It does review in exactly the way your Honour the Chief Justice put to me – not for this Court to do so. This Court’s role, and its only role, is to ensure that the outcome of the Electoral Act – if a provision giving rise to this entitlement is, in a practical sense, under challenge to ask the two questions in Rowe and we say that is not requiring the Court to enter into an evaluative process from time to time. If there is a prior decision of the Court on validity and someone comes along and says it is not invalid, the question your Honour the Chief Justice raised with me will be the one that has to be asked and answered, but that is not what is happening in this case.

So, I think I have taken your Honours to tables 13 and 14. I wanted to take your Honours to – I think it is table 15 at 117 which gives your Honours the total break-up. I may have gone down there – that is 228,000 of the claims received during the suspension period. Paragraph 121 deals with objections which ceased during the suspension period but those figures are not large because the Commissioner resolves them and was caught out in 2010 because of the date of the election. But, the principle of suspending objections, we say, suffers from advice which we have put forward.

I should say, the figures I have taken your Honours to are at the lower end – not the higher end – because at paragraph 125 of the special case, we have set out the archival snapshots of the AEC enrolment web page which your Honours will see that people are told when they go to the website that it is too late to enrol for the current election. They still can enrol but it will not be – they are told that their enrolment will not be effective until after the election. So, we say the figures, as I said, were at the lower end.

We say that – and this is a further answer to your Honour Justice Nettle’s question to me – Justice Crennan at paragraph 384 in Rowe said:

to seek to discourage a surge of late claims for enrolment by disentitling or excluding those making them constitutes a failure to recognise the centrality of the franchise –

It is that kind of thinking that underlay the reasoning of the four judges who did not regard failure to comply with the duty as giving rise to a justifiable disentitlement.

Can I go next to the – I should say the Victorian, New South Wales and Queensland figures also show a substantial demand for enrolment on election day or up to election day, consistently with the figures we have put forward. For the purpose of the proportionality analysis or substantial reason, in our submissions at paragraph 38 at page 11 we have cited the explanatory memorandum for the reinstatement of the seven-day suspension period. It is at the end of paragraph 38 in the amended 2010 bill, which reinstated the seven days:

“The aim of providing a cut-off date for the close of the Rolls is to ensure that, for practical purposes, a certified list of eligible voters can be prepared in advance of the election. This is particularly important from a logistical perspective as voting is compulsory -

We say that is the objective of the Act’s provisions concerning enrolment and what we say is the fallacy in the Commonwealth’s case is that a cut-off period that seeks to prevent enrolment, prevent update, prevent objections is antithetical to the objective of having a roll that records the choice of the people on election day.

The Commonwealth’s case essentially is that the certified list, as at the cut-off date – and it would be 23 May in the present electoral contest – is the repository of the electors who were to vote on 2 July, notwithstanding that on the evidence tens of thousands of persons who would otherwise enrol and vote in their divisions are not able to do so.

We say the arbitrariness of the cut-off date is its lack of any relationship to the time needed to have a roll available and ready on polling date. Seven days is the cut-off date, irrespective of whether the election is at a minimum of 26 days on the table set out. There is a timetable in the special case book, which I will refer your Honours to. At page 102, your Honours will see the electoral timetable going from “Close of rolls” down to “Polling day”, seven days to 33 days. So there is a 26-day minimum under the Constitution in the Act but the maximum is from 17 to 68 days, which is 51 days.

Under the current cycle, the election was announced on 9 May, the issue of writs on 16 May, close of rolls on 23 May, close of nominations on 9 June, polling day on 2 July, which is about 39 days. So the seven-day limit acts without regard to and irrespective of the time needed, which varies from 26 to 51 days, in the present context 39 days, and there is a substantial disenfranchisement or disentitlement in that process.

Now, our learned friends from the Commonwealth seek to meet our case on the basis that the system requires one class of electors for the electoral process, and therefore there is a need to have the electors as at the date of the closure of the rolls to be the electors at the date of polling. We say that is, with respect, not supported by the Act, and can I just quickly go through the sections?

Section 285, the proclamation in Rowe, shows that there can be an entirely different group of electors on polling day under the Act. The provisional vote provisions I took your Honours to yesterday, section 266 in Schedule 3 and 105(4), shows names can be added to the roll under those provisions. Sections 105(1) to (3) and section 102(6) enable changes to the rolls at any time, but even more fundamentally, the following sections show that electors have different functions under the Act as part of the electoral process which is totally antithetical to the idea of one class.

Under section 76 there is a mini distribution provision of divisions based on electors at the date of the issue of the writ for the purposes of an election. Sections 123, 126 and 127 concerning registration of political parties based upon members who are electors as at the date of the issue of the writ, not at the date of close of the polls; nomination under 156, 163 and 166 are between 10 and 27 days for the issue of the writ. Pre-polling can occur at various States but the rolls, as opposed to the certified list, may differ for pre-polling at different dates, and then you have the ultimate provision of section 221 – a conclusiveness of the roll on polling day.

Now, our learned friend’s submission failed to give effect to the distinction drawn throughout the Act and in the definition sections between the certified lists and the electoral rolls. They treat them as, in effect, synonymous giving rise to one class of electors which we say is misconceived.

GAGELER J: Mr Merkel, you took us to the election timetable page 102. Accepting that any precise prescription of the number of days from the issue of the writs is going to have an element of arbitrariness to it, there is a sequence of events set out there. There is the closure of the rolls, followed by the, I think, the opening and the closing of nominations, then the declaration of the nominations leading up to the polling day. Now, the effect of your submission is that that traditional sequence, which has been the sequence of elections for the last 150 years or so, would no longer apply. The nomination process would not follow on naturally from the closure of the rolls.

MR MERKEL: No, with respect. No, your Honour, our submissions do not interfere with this sequence at all. The only provisions we are seeking to challenge is the suspension provisions. Section 155 stands independently and this time process stands independently. We have no quarrel with the time process. The only reason I take you to the table is to show the indifference to the timetable of the suspension period. It operates arbitrarily and in disregard of this timetable, not because of it.

If it were related to polling day, as opposed to the issue of the writ, it would have a rational starting point, but its lack of relationship to polling day already puts one on notice that it has been arrived at without regard to the time needed to have rolls available in the electoral process – bearing in mind it does not have to be the same roll on the date of pre-polling as it would be on election day, because if you are not on the roll on pre-polling, you can have a declaratory vote, and you may, through the process of Schedule 3, get on the roll as a result.

We say that the suspension period is antithetical to accuracy. It is antithetical to making this process work smoothly. It does not assist it. The 200,000 declaration votes are adequate testament to that. We do not interfere with that timetable.

GORDON J: Another way of looking at it is a matter I put to you yesterday, and that is you put a line through the “close of the Rolls” line and 155 and render that step relevant.

MR MERKEL: No, your Honour. It is not irrelevant. It stands. It is the suspension that goes; nothing else.

GORDON J: But according to 155, in the sequence that Justice Gageler just put to you, that is an important step; a step which brings about the closure of the roll for the purpose of this election.

MR MERKEL: Your Honour has built into that an assumption which the Act does not support - - -

GORDON J: And what is that assumption?

MR MERKEL: That the closure of the rolls at that date are to be the rolls used on election day, on polling day. I took your Honours to provisions yesterday that show that the Act distinguishes between closure of the rolls giving rise to a certified list, and the electoral rolls on election day. They are quite different conceptually, and they are quite different in practice. The closure of the rolls gives rise to the steps the Act takes following it. It is not any part of our case to say that if the suspension provisions go, the “closure of the rolls” provisions go.

Our learned friend, the Solicitor, said at a directions hearing that section 155 had to go because it was not severable. We will deal with that in reply, but we say there is no issue of 155 having to fall with the suspension periods; a self-sustaining duty imposed upon the Commissioner in disregard of these other provisions, and it does not interfere with the timetable. That is how we put it.

We do say proportionality testing is relevant because it is a constitutional limitation. It was applied in Rowe. The Election Act has a purposive function under a purposive power; Justices Gummow, Kirby and Crennan in Rowe had referred to it as being closer to the central conception of representative democracy than the freedom of political communication.

The purposive character of this power was referred to by your Honour Justice Bell and Justice Gummow in Rowe at 163 and 166. We say that takes one to this balancing question. We say any benefit is outweighed by the detriment, and the net effect is antagonistic to the constitutional mandate. That would cite your Honour Chief Justice French in paragraph 25 in Rowe.

We say that there is an asserted benefit, but the facts in the special case simply do not articulate it or warrant a conclusion that it is there. It is not the function of the electoral roll itself that we challenge; no part of it. We accept the entirety of the machinery provisions of this statutory scheme, the entirety of that timetable, which operates independently of the suspension. It is the question in Rowe as the consequence of the suspension. In Rowe, it was expansion; here, it is the period itself. This Court has never considered that aspect.

KEANE J: Mr Merkel, if there is no suspension, how do the provisions of Part IX in relation to objections work?

MR MERKEL: The objections would come in – I should say I understand - - -

KEANE J: Well, if one can vote without being enrolled before polling day, how do the provisions that entitle or that provide for objections to enrolment and thus to voting, how do they operate?

MR MERKEL: They would operate in this way without difficulty, your Honour. The pre-polling vote is not counted until polling day. The entitlement to vote is on the date of polling day, not on the pre-polling date. You put your vote; it is counted on polling day. If you are on the roll, it gets accepted; if you are not on the roll, it will be rejected subject to whether you put in a declaration vote.

If an objection process is dealt with, it would be dealt with in the same way as the process of enrolment and transfers. Objections would be dealt with up until such time as it was practical or feasible to ensure there was a roll on polling day that accurately recorded the electors who were entitled to be on the roll, not a roll that was inaccurate in that regard. So, the cut-off date for objections would be based upon the same practical reality as the cut-off date for transfers and enrolments and it would be quite a seamless process and on election day the electoral roll under 221 is the conclusive evidence, not the roll at any other stage, not the certified list - - -

KEANE J: You are saying it would be, that is, on the hypothesis that the Act was somehow altered. But just in terms of the provisions that currently exist which contemplate the giving of – the making of objections, giving a notice of objection and determination of them, how could they operate before the poll?

MR MERKEL: Your Honour, to the extent that notice has to be given and the procedure would not be completed by polling day, they would have no effect on the roll.

KEANE J: But these provisions could. I mean, it may not necessarily be the case that they will, but they could possibly at the moment operate to provide for determination of objections under section 118 before the poll. Whereas, on your approach, they cannot have that operation and you do not challenge the validity of these provisions.

MR MERKEL: No, the provision that is challenged is suspension of objection. Can I give your Honour the example we would give? The Commissioner has 2,000 objections on the date of closure of the rolls, without any difficulty they could be resolved and they are almost resolved or resolvable within seven days. She is suspended from dealing with them, for what reason? No reason. Why should the roll have its inaccuracy perpetuated?

There may be a timetable which means the objections cannot be dealt with until after the polls. So be it. That means the roll will stand because the process for its change is not able to be carried out, but the arbitrary suspension of enrolment and of dealing with objections for the purpose of accuracy of the rolls has no justification. There is simply no practical basis for that. That is probably the most arbitrary of the problems because if the Commissioner could deal with them, they would be dealt with, and there is a notebook roll that can keep the roll up-to-date for the purposes of being accurate on polling day.

They are the submissions that we would put. My learned junior, Mr Tran, will address your Honours on the alternatives of the New South Wales, Victorian and Queensland legislation which shows there are practical alternatives having a far less drastic effect than the suspension provisions which is part of the analysis we have dealt with in our submissions.

FRENCH CJ: But, does that – I am sorry. In paragraph 101 of the Commonwealth submissions, it is said that you:

implicitly concedes that the New South Wales and Victorian regimes could not, in fact, be achieved within the confines of the existing Act –

Are we talking about a redesign of the whole Act or something different - when you are talking about your compelling and obvious alternatives? I mean, it is obvious that one could design an Act in which people have a right to enrol right up to the moment of voting.

MR MERKEL: Your Honour, we have, in our reply, criticised the Commonwealth for conflating two different questions. Maybe I have not articulated it very well.

FRENCH CJ: I just want to understand why we are being taken and precisely how you want to use the New South Wales and Victorian legislation.

MR MERKEL: We say we want to use that legislation in the context of proportionality testing. One step of which is, is there an alternative means, in the terms of McCloy, by which the same object could be achieved without the detriment caused by the disentitlement of the suspension provisions. That looks at the alternative in proportionality analysis and that does not require – and, indeed, disavows - a comparison with the Act in its present form without the suspension provisions. My learned friend, Mr Tran, will take your Honours to that but it comes up very much as an alternative because if there is an alternative without that detriment, then the proportionality analysis would say that the suspension provisions are invalid before you get to the balancing effect which, we say, is where the invalidity was found in Rowe.

But, can I just raise a logistical problem with your Honours? Our time runs out, by agreement, at 11.15 am on the assumption that your Honours will be sitting the normal hours for the rest of the day and that would leave 10 minutes to my learned friend, Mr Tran. If there is a possibility of any extra time, we would be grateful for it. But, if it 10 minutes, it will have to be 10 minutes.

FRENCH CJ: Yes. Well, what I am really concerned with – we have got your written submissions about the legislation – what I am really concerned about is what is the dispute here? Is it in dispute, for example, that you could rewrite the Electoral Act to allow for voting up to the point of – for enrolment up to the point of voting?

MR MERKEL: I think in a nub, what I would say is, our learned friends wrongly introduce into that alternative means analysis, the Act as it is. We say that is conceptually wrong. We look at an alternative in the true respect that McCloy would have us look at it and that is what I will ask my learned friend, Mr Tran, to address, if I may.

KIEFEL J: Just before you do – and so that Mr Tran does not have to answer this question – does your alternative means take into account the transfer from the State system where the voting systems to which he will refer operate transposing into a larger national system? Can you say it is practicable?

MR MERKEL: Yes. Your Honour, we say that, as a matter of necessary inference because one cannot test what may happen in the future, but as a matter of necessary inference if the three most popular States in the country which have no particular distinctive features about them that differ from other States – Queensland has its remote areas as does Western Australia and the Territory – if they are able to have a seamless transition to up to same day enrolment in Victoria and New South Wales and night before enrolment in Queensland, we say the inference is that there is no logical basis for saying it cannot be transported nationally, particularly in view of the fact that the State rolls are essentially based upon and derived from the federal rolls.

So we see, if it were just Tasmania you might have a Betfair Case, but here it is the three most popular States on the eastern seaboard and nothing is put forward in the special case by anybody that would say it is not translatable to Tasmania, Western Australia or elsewhere.

KIEFEL J: Or to a national system, which is what I was asking.

MR MERKEL: Into a national system, yes, your Honour, because electoral democracy essentially has the same elements, divisions in which popular votes are counted as part of a representative democracy in the States that substantially replicates the representative democracy at the federal level. I hope I have not shrunk my learned friend’s time.

FRENCH CJ: Well, I am sure he will be succinct. Yes, Mr Tran.

MR TRAN: May it please the Court. I have the task of persuading your Honours of two propositions. The minor premise is that there is at least one reasonably available alternative which is equally efficacious and less detrimental to the franchise. The major premise is that it matters to the constitutional analysis that there is such an alternative. May I start with the major premise first? So this premise is only reached if there is indeed factually a reasonably available alternative, so I will ask your Honours to assume for present purposes that the plaintiffs are correct that there is an alternative. I understand that that is in dispute with the Commonwealth.

In our submission, the fact that these alternatives exist, if they do exist, is determinative and fatal to validity. That is the position when assessing the implied freedom of political communication. I will give your Honours the references to this Court’s decision in McCloy. That is McCloy v New South Wales [2015] HCA 34; (2015) 89 ALJR 857 at paragraphs 81 of the joint judgment, 135 of Justice Gageler’s judgment, paragraph 222 of Justice Nettle’s judgment and paragraph 335 of Justice Gordon’s judgment.

In our submission, there is no reason why the Parliament should have a greater discretion to adopt more detrimental alternatives in the context of the franchise than when it does when dealing with political communication. The reason for that is this. As the joint judgment said in Roach:

disqualification from exercise of the franchise is, if anything, a subject even closer to the central conceptions of representative government.

In Lange, the High Court explained the justification for implied freedom of political communication as a necessary incident of this Australian constitutional system in order to enable the electors to exercise their free choice at the polling booth. There is a sound reason rooted in what Professor Harrison-Moore referred to as the prevalence of the democratic principle as a predominant feature of the Constitution, why the selection of more detrimental means ought not to be countenanced.

This is appropriate in part because controlling who is eligible to vote obviously has a profound impact on who can be elected and who can be elected or those who are elected are those who exercise the legislative and executive powers of the Commonwealth.

If the appropriate test is to search instead for a substantial reason, as opposed to the kind of McCloy reasoning and the proportionality reasoning adopted by the plurality in that case, these alternatives are not irrelevant. To the contrary, the ready availability of these alternatives demonstrates that the detrimental effect of this law on the franchise is irrational and arbitrary. Indeed, these alternatives cast a slightly different complexion on the operation of the Commonwealth Act and show the detriment to be wholly unnecessary.

So that is the major premise of our argument on the alternatives. If it is the case on the agreed facts that the plaintiff can show that there is a reasonably available alternative which achieves the purposes which the suspension period currently to achieve and which is less detrimental upon the franchise, then as a matter of principle there is no reason why the Parliament should be accorded deference to adopt a more restrictive alternative if, as the Court has accepted in the context of implied freedom of political communication, the Parliament would not be granted that kind of discretion or deference in the context of implied freedom. That is our major premise.

The minor premise is that there are indeed these alternatives, if I may take your Honours to those now. The first alternative, in our submission, is that the Commonwealth can permit enrolment up to and including on polling day. In our submission, this alternative is less detrimental to the constitutional mandate because it would permit people to enrol and transfer for a longer period.

In our submission, this alternative is also reasonably practicable because there are means to put it in place immediately. First, there is a proven ability and capacity to update the roll during the suspension period. The Electoral Commissioner in fact does so to the extent that he is permitted to do so under the Act. This is in the form of a notebook roll. I will not take your Honours to the relevant parts of the special case but they can be found at paragraphs 63 and 65 at page 106 of the special case book.

The Electoral Commissioner also already processes joint enrolments and sends them to the states for their purposes, but they are simply not translated into an update to the Commonwealth Electoral Roll. This is at paragraphs 138 and 140 at page 125 of the special case book.

Secondly, the 2010 election produced a result even though people were permitted by this Court’s decision in Rowe to have their enrolments and transfers processes after the certified lists had been produced. This was achieved by the mechanism of a proclamation under section 285 of the Act.

Thirdly, what occurs on and after polling day is also illustrative of the Australian Electoral Commissioner’s existing capacity to enrol up to and including on polling day. Table 8, at page 110 of the special case book, shows that a significant number of provisional votes are cast, only some of which are counted.

FRENCH CJ: Is this obvious and compelling alternative simply the Commonwealth Electoral Act without the suspension period?

MR TRAN: Your Honours, I am wary to say anything inconsistent with my leader. My leader said that we - - -

FRENCH CJ: One should always be wary of that.

MR TRAN: Mr Merkel said, in answer to your Honours, that the plaintiffs do not suggest as an alternative that the Act would simply work without the suspension period.

FRENCH CJ: That is the point you seem to be getting to.

MR TRAN: It turns out, in our submission, that simply excising the suspension period from the Act tips the Commonwealth precisely into this first alternative. If I may explain how that is so. If your Honours were to draw a line through the suspension period the result would be that the Electoral Commissioner has an ongoing duty to act upon claims without delay. That is section 102(1) of the Act.

In the special case book there are agreed facts about how long it actually takes the Electoral Commissioner to update – to process enrolments. In paragraph 35 at page 98 of the special case book it is agreed that the AEC takes on average “4.5 minutes” to process a paper enrolment and “2 minutes” to process an online enrolment. So, assuming that without delay takes about 2 minutes to 4.5 minutes, the practical result is that it becomes up to or including the day of enrolment. In answer to – sorry, Chief Justice.

FRENCH CJ: That is telling us about the working of the Act without the suspension period. How do New South Wales and Victoria play into this apart from providing examples of ways in which you can structure a system differently?

MR TRAN: Your Honour, the New South Wales and Victorian legislation is relied upon by the plaintiffs for two reasons. First, their practical experience highlights that this conceptual alternative allowing enrolment up to and including polling day is reasonably practicable. It also demonstrates that this is an obvious and compelling alternative. It may be a convenient moment, if I may be permitted the time to take your Honours very briefly to how the New South Wales and Victorian statutes work. If your Honours could perhaps be handed - - -

FRENCH CJ: Well, I am not sure how much that adds to what you are saying. We can see for ourselves that it is possible to devise a system and that a system has been devised which offers an alternative to the present.

MR TRAN: Excepting that, your Honour, if I may perhaps just highlight one particular aspect of the New South Wales legislation which, in my submission, highlights the irrationality and arbitrariness of the current Commonwealth Electoral Act. If your Honours may be handed the New South Wales legislation.

In the New South Wales legislation section 89 provides for an authorised copy of the roll to be provided to polling place managers. That authorised copy is prepared as at the date of the issue of the writ and that appears at section 89(3). The evident purpose of this authorised copy of the roll is to ensure that ordinary voting can proceed in an orderly fashion.

However, as the New South Wales legislation demonstrates, that does not prevent - at least in the New South Wales context, in our submission, it is translatable to the Commonwealth context - the Electoral Commissioner from continuing to process enrolments. Indeed, sections 29(9) and section 30(3) expressly state that enrolments are to continue to be processed.

Then, section 106 provides for the process of provisional votes whereby electors may – or people who are not enrolled or who had not enrolled correctly may still vote on polling day even though their enrolment is inaccurate prior to that time. The significance and what I want to draw out of this, your Honours, is this. As my leader has said there is a disconnect between the close of the rolls and the ongoing process of enrolment such that the rolls adequately and accurately reflect people’s entitlement to vote as at election day.

It is open to the Commonwealth Parliament to stipulate that certain steps are to be taken by reference to the issue of writs – for example, the production of a certified list; the opening and closing of nominations. That is a different issue to when the Electoral Commissioner should have to stop in taking enrolments. In our submission, the New South Wales legislation illustrates that a certified list or an authorised copy of a roll may be produced earlier on, but that does not mean that there is any rational reason to stop people from updating or adding their enrolments to the roll after that date.

Your Honours, if I may make one final submission, which is to explain how our second alternative, about counting backwards, would actually have a real beneficial impact upon the franchise, because it is put against us by the Commonwealth that the plaintiffs have failed to demonstrate how it is that the counting back alternative actually results in a less detrimental impact upon the franchise. I promise after that, I will sit down, if I may have that indulgence, your Honours.

FRENCH CJ: Yes, proceed quickly, please.

MR TRAN: This alternative, your Honours, is to calculate any suspension period by working backwards from the date of the election. The operation of this alternative can fairly be illustrated by looking at what happened in 2010. In 2010, the rolls closed at 26 July 2010 following this Court’s decision in Rowe. The AEC finished processing claims on 13 August, which was seven days after the Court’s decision in Rowe – so that is seven days. It then took one day to print, and four days to dispatch the supplementary certified list; that is 12 days in total. That appears at page 122 of the special case book.

Working backwards, those 12 days, the rolls could have been closed on or about 9 August 2010 instead of 26 July 2010. The consequence of closing the rolls later appears from the table at page 117 of the special case book. That shows that at least 42,000 more people would have had their applications processed had it been closed at that later time, and closing at that later time would have permitted the AEC to take the exact same steps which it took to respond to this Court’s decision in Rowe.

Applying that to the current election – and accepting that perhaps 12 days may not be an accurate reflection of how long it would take in 2016, but assuming that 12 days is around the ball park – the election this year is to be held on 2 July 2016, and the rolls will close this year on 23 May. Counting backwards by about 12 days, if the Electoral Commissioner were to adopt a supplementary certified list, the rolls would close on 20 June 2016, almost a month later. If there are no further questions, those are the plaintiff’s submissions.

FRENCH CJ: Thank you, Mr Tran.

KEANE J: Can I just ask, how do the provisions of section 32, 33, 34 and 35 dealing with the making and determination of objections work in the New South Wales Act, so far as polling day enrolment is concerned?

MR TRAN: Your Honour, I do not know how they work in New South Wales, and there are certainly no agreed facts about that - - -

KEANE J: Well, just in terms of how they work under the Act. What is the effect of the Act in that regard?

MR TRAN: In my submission, the effect of the Act in that regard is that if someone has their enrolment processed and applied on election day, the result simply is that someone may not be able to object under section 32(1), which says an elector may object. However, if a person were aggrieved by someone’s enrolment, in my submission, that could be corrected, and definitely in the scheme of the Commonwealth Act, that could be potentially corrected through the Court of Disputed Returns. But, in my submission, looking at the New South Wales Act, it would not be open to a person, because it would be essentially too late for the purpose of that election - - -

KEANE J: So what would happen would be that the validity of the election would be under a cloud until the Court of Disputed Returns determined the case?

MR TRAN: If someone were to have that objection and it were a material objection – I am not aware whether the New South Wales legislation has the same provision which Justice Gageler took my learned leader to yesterday but if I may speak about the Commonwealth Electoral Act. A person in the Court of Disputed Returns would not, necessarily, be able to bring down the election of a particular member of the House of Representatives or a Senator if their objection would not have a relevantly material effect.

GAGELER J: Well, there is something more to it than that. The Court of Disputed Returns is prohibited from inquiring into the rolls.

MR TRAN: Yes, your Honour, that is correct. Thank you, your Honours.

FRENCH CJ: Thank you, Mr Tran. Yes, Mr Solicitor.

MR GLEESON: The answer to your Honour Justice Keane’s question is that under the New South Wales Act there are two radical differences to the Commonwealth Act. The first difference is that the roll never closes. So, during the whole period leading up to polling day, people can continue to put in applications for enrolments and, subject to the hard work of Mr Mason and the Electoral Commission, they may be enrolled.

So, during that whole period of the election, there can be applications for enrolments, enrolments and objections. And, objections can be taken and they will take time to process and there can be appeals to the Local Court of New South Wales. So, the result is, under that scheme, very different to the Commonwealth. There is much less certainty that by polling day you have dealt with all objections and you cannot be sure when you have dealt with them.

The second critical difference in New South Wales is that on polling day you can turn up if you are not on the roll and fill in an application for enrolment and you also fill out a provisional vote. What then happens is that you are entitled to vote if it is later established that you were entitled to be on the roll. So, what is being severed is the central disconnect in the Commonwealth scheme where the right to vote is linked to your enrolment.

Under the New South Wales scheme, that is one possibility but there is an extra possibility which is you can vote if it is ultimately established you had an entitlement to be on the roll on that day. That takes you to the objections process. So, the objections will then extend – or may extend – post-polling day to people who lodged polling day applications. They can then be determined and go to the Local Court. So, under that scheme, there can be no assurance that you will have a timely declaration of the election as you would under the Commonwealth scheme.

To be clear, the Commonwealth does not submit that it would be beyond sections 7 and 24 if the Commonwealth Parliament chose to move down the New South Wales model, or Victoria, or Queensland. They would all be within the range of direct choice. They would, however, have a different balance of objectives and values attached to them. So, the central problem with Mr Tran’s argument – and I note he is smiling there, he must be happy about something – is that the New South Wales, Queensland and Victorian schemes do not achieve the central purposes of the Commonwealth scheme. They achieve a different mix of objectives.

FRENCH CJ: In terms of the response you just put forth about the operation of the New South Wales scheme, it might be useful just to have a little note of the references to the provisions that support that description.

MR GLEESON: Yes, we will prepare that over lunch, your Honour. It did not come out from Mr Tran’s helpful submissions but there is then a further difference between the New South Wales approach to this issue and the Victorian/Queensland approach. I will just outline what that is. It may be clear from what I said. New South Wales has made the decision that the roll remains open at all times so the class of persons who are the electors shifts, may shift, through the whole process up until polling day. What that means is the persons who are the electors at the stage of nomination are the persons who are on the roll at that point in time but the persons who are the electors at subsequent stages in the process will depend on who has managed to get on the roll in that intervening period.

So, in that sense, New South Wales says we are open to the class of electors provisionally being those on the roll on the early date expanded by those who get on the roll during the period and then further expanded by those who turn up on the day. Victoria and Queensland have taken a different approach. They start like the Commonwealth, they follow the traditional model that Justice Gageler referred to, as evident from the special case book at page 102. They follow that model. There is a closure of the rolls. The closure of the rolls is a real and significant event, contrary to what Mr Merkel puts. What it does is it does what it says, it closes the roll. Those are then the electors who form a close class for the whole process up until polling day.

So, Queensland and Victoria have chosen to follow the traditional Commonwealth model. The one change they make is either on polling day in one case or in Queensland, the night before, you can then make your application to get on the roll and, to that extent, they have followed the New South Wales alternative. So, they have done it a different way. None of those three States achieves the purposes which are in the Commonwealth Act and, therefore, they could not, on any view, be equally efficacious.

BELL J: So, in Queensland and Victoria you have the same situation that objections in relation to people who have applied beyond the roll are dealt with after the poll.

MR GLEESON: Queensland and Victoria, because the roll has closed then during the whole election period the only objections you will be dealing with were those which relate to the period prior to close of rolls. That is closer to the Commonwealth with less of an open-ended problem.

BELL J: But those who turn up on the day - - -

MR GLEESON: Yes, they create the same problem so they can have objections.

BELL J: Creates the same problem and the same assertive lack of certainty about the declaration of the poll.

MR GLEESON: Yes, that is right, and that is the choice that is being made, and what that immediately illustrates is that there are a range of values and factors which are being balanced here by the respective Parliaments and these three Parliaments have decided that the extra virtues in allowing the people who, for whatever reason, have not complied with their legal obligations to be given an extra chance on the day of the poll outweigh the detriment to certainty and timeliness and they are all choices which are within the range.

Your Honours, one other aspect to mention about these – and it has not come through what either Mr Tran or Mr Merkel have said – is, if one injects the slightest air of practicality into this exercise, it must be a legitimate purpose in designing electoral scheme to seek to achieve an orderly and timely conduct of an election.

If you make the choice that these three States have made, how do you determine and quantify in advance how many people will choose not to get on the roll but just turn up on the day? You can make some estimates based on the past, but how do you quantify, plan or predict people’s behaviour, particularly when they now know that the incentive to comply with their obligation is no longer there – you can turn up on the day.

What that means is that the resources that need to be applied to the problem will be very difficult to quantify in advance and, to the extent the facts are of any relevance, they are the facts that are on pages 124 and 125 of the special case book. We know as a minimum that, if the Commonwealth changed its act to do what Mr Tran said, a very, very significant amount of resources would need to be added but what is apparent in paragraph 134(c0 in the middle, which is obvious, it is not possible to know in advance how many additional declaration votes would be cast at which places. So:

it is not possible to precisely estimate in advance of polling day how many additional officers would be required at any particular polling place - - -

unknown, unknown, unknown, and paragraph (d):

there is a potential risk of delays -

Now, your Honour Justice Kiefel asked: can one be satisfied that merely picking up a system which one State is now trialling, as it were, and transferring it to the national demands across all States and Territories with a Senate and House of Representatives, that cannot be in any way quantified or established and one cannot say these are equally efficacious means.

We do know from page 111 – again it is self-evident – paragraph 83, that it is more difficult and time consuming to process votes on the day. Your Honours, we are not encouraging that this case needs to be decided on the facts; it can be decided by comparing the Constitution with the Commonwealth Electoral Act but to the extent these are so-called alternative measures, (a) they do not achieve the same balance of objectives and (b) it is not established that they are equally efficacious.

Your Honours, having been provoked by the alternative measures, can I return to a more orderly point at which to start the case, which is, as per paragraph 1 of our outline, and trying to get to the essence of Mr Merkel’s legal argument, we submit that it is significant that, if one goes to his outline, in paragraphs 6, 7, 9 and 14, he has engaged in two narrowing moves.

His first narrowing move is that the election, both for constitutional and statutory purposes, should be reduced to the polling day. Everything is about choice on the polling day. Now, as a constitutional submission, effectively he is asking your Honours to read sections 7 and 24, when they speak of “directly chosen by the people of the State” or “the people of the Commonwealth” as the vote via the ballot on polling day.

Now, that is wrong, because it is a far too narrow conception of the election as a process. I will come fairly shortly to the one reference that he gives for that proposition which is your Honour Justice Bell’s judgment in Rowe at paragraph 160, which we submit does not stand for that narrowing proposition.

His second narrowing proposition, which really comes out of these paragraphs, is that the only constitutionally available purpose for a roll is to maximise the opportunity for people to vote on polling day. He said to your Honour Justice Kiefel yesterday he is not demanding maximisation of actual votes, but he says he is demanding maximisation of the opportunity to vote.

When Mr Merkel is asked about the relevant burden or detriment or disqualification, in the end, what his case is, is any system which does not permit each and every person to vote on polling day is prima facie a disqualification or a disenfranchisement, which then has to be tested against its substantial reason. That is the narrowing move that he has made because of his view that the election is what occurs on polling day.

Your Honours will also see in his “practical operation” submission, paragraph 9, the reason there is no rational connection between the suspension period is tested by reference to the requirement to have rolls in place for polling on polling day; paragraph 14, a similar sort of argument. Our submission would be that this case can be disposed of on many grounds, but one ground as a matter of constitutional law is that the election, required by the Constitution, is not reduced to choice on polling day, or maximising opportunities to choose on polling day.

Your Honours, could I just commence with that submission, because it may dispose of most of the matter. I want to go to three cases; firstly, Langer; secondly, Sykes; and thirdly, your Honour Justice Bell’s judgment in Rowe. If the Court has Langer v The Commonwealth [1996] HCA 43; (1995) 186 CLR 302 at 332, Justices Toohey and Gaudron, in the middle paragraph, identified that the concept of “choice by the people” when used in sections 7 and 24 and the like is not to be equated with what happens with the election. They make the point in the middle, which is critical:

At the very least, the word “chosen” is apt to describe accurately the situation where there is only one candidate and it is, thus, unnecessary to conduct a ballot.

Returning to the conventional table at page 102 of the special case book, the first stage after the close of rolls, which is the nominations – that is a part of the process of direct choice provided for in sections 7 and 24. As your Honour Justice Keane put for consideration, it is an overall system that is being designed by Parliament to give effect to direct choice, and one of the obvious decisions by Parliament is that the traditional nomination process should be retained within this logical sequence. Of course, in that process, to be nominated, as we heard from Mr Merkel’s second plaintiff, one needs the votes of 100 persons who are on the rolls as electors.

So, the closure of the rolls, and the suspension period, enable this orderly sequence to follow where they tell you, first of all, who are the electors – who can do the nominating – and theoretically, at least, that may be the beginning and the end of the direct choice in certain aspects of the overall process. That means one cannot reduce the constitutional concept of election to simply what happens on the polling day.

The second judgment, your Honours, is Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77. At page 100, when their Honours were dealing with another use of the word “choice” in the Constitution in a different place, namely, section 43, they said at about point 5:

In that context, the words “shall be incapable of being chosen” must refer to the process of being chosen.

They then refer to the Electoral Act and they take up the very same point that:

the “choice” –

may be made through the:

state of affairs existing on nomination day –

So, that also would be destructive of Mr Merkel’s proposition. Your Honours, could I then go to his reference which is Rowe (2010) 243 CLR 1 and he goes to paragraph 160. He relies upon the last sentence of that paragraph which reads:

Rather, the relevant starting point is to ask whether, at the time when the choice is to be made by the people, persons otherwise eligible and wishing to make their choice are effectively disqualified from doing so.

The point we would make is that it was not necessary in the facts of Rowe, because it was all about the amending Act which was attacking, or getting rid of the seven-day period, for your Honour Justice Bell or Justice Gummow to traverse the question which is being addressed today which is what is the time at which the choice is made?

It is an available, and we would submit correct view of your Honours’ judgment - your Honours’ judgment consistent with Langer and Sykes takes the larger view that the process of choice occurs across the election, including, but not limited to, the election day. Therefore, Mr Merkel, in effect, we would submit, has over-read your Honours’ judgment and if that is his authority for the election collapsing into the polling day, then his case should suffer a similar fate.

Now, further support for the election being a process of course comes from the Constitution with the notion of the writs, the issue of the writs as per, for instance, section 12 of the Constitution, the issue of the writs commences the process. Then Parliament designs the system for the choosing within the process and in due course the writs have to be returned within a specified period. So, your Honours, that is what we would submit in relation to the first of Mr Merkel’s narrowing moves.

The second of his narrowing moves is that the only purpose – only legitimate constitutional purpose for a roll is to maximise the opportunity for people to vote on the polling day, and our answer to that is that there is a much larger range of permissible constitutional purposes which a roll can fulfil.

To understand that larger range of purposes, a useful starting point is your Honour the Chief Justice’s judgment in Rowe, particularly at paragraphs 12 and following where your Honour dealt with the history. In paragraph 12 when your Honour referred to the purposes of the 1832 Representation of the People Act in England and Wales, your Honour quoted from Seymour reviewing the history in 1915 that the purpose of introducing the roll and registration:

was “not so much to prevent fraud or to secure the rights of the bona fide electors, as to decrease the expense of elections”.

As your Honour said in the last sentence of that paragraph:

As appears from the history, the purpose of registration was practical and directed to dealing with the consequences of the complicated and diverse qualifications required for a person to become an elector.

Now, that might be put under the label of it assists the orderly, efficient and economical conduct of the election because instead of having to deal with claims to be entitled to vote on the day one looks to the roll. Now, we know from New South Wales, Queensland and Victoria, they have chosen to some extent to depart from the established principle that it is the roll which determines your entitlement to vote and that is their choice to do so. But what Mr Merkel really fails to persuade you of, I would submit, is that it was and remains legitimate for the Commonwealth if it so thinks fit to adhere to this established purpose for a roll.

So therefore the range of legitimate purposes for a roll are far richer than those that Mr Merkel would permit, and they include, as I have said, orderly conduct of the election, they include a timely conduct of the election, but could I just indicate some further purposes that the roll achieves. The effect of the roll and the closure and the suspension period is that at an early point in the electoral process after the writ the candidates, the parties and the people know who will be the electors for that election. That is very important for a range of reasons.

If one thinks about it from the perspective of the candidates and the parties they know the electors to whom they may wish to communicate their messages. So, the link is here back to the Lange principle that the implied freedom of communication which, of course, exists beyond the election but has particular force within the electoral period, is assisted if the candidates know who are their electors.

Now, on Mr Merkel’s case, the candidates will know provisionally a group of people who will be electors but they do not know the full pool of electors because the full pool is only completed as the election process goes on and perhaps on the day. So, one can immediately see that the knowledge of who are the closed class of electors assists in the freedom of political communication.

Now, from the converse position, what does it mean for an elector? The elector has to be on the roll by the close of rolls. The person then knows they have the duty to vote because the duty to vote is attached to the enrolment. They know they have a right to participate in the process of nomination. They have the opportunities to take up pre-poll or postal voting if appropriate. They ultimately know they have a duty otherwise to make themselves available on polling day.

If one takes Mr Merkel’s approach, the elector does not need to have – certainly on any of those matters, until the polling day, you can leave it until the night before and think, well, do I really want to turn up tomorrow? Do I want to apply for an enrolment on the day? There is no certainty for the elector that they are a person with the entitlement and duty to vote.

What it also means, coming back to your Honour Justice Keane’s questions about the objections is that at least you will have the period between the closure of the rolls and the polling day to attempt to sort out any objections including appeals to the Administrative Appeals Tribunal.

So, these are benefits that go beyond merely an orderly conduct of an election, although, they are clearly that. They go beyond a timely conduct of an election. It was open to Parliament to form the view consistent with history that direct choice is enhanced by enabling this relatively early closure of the class of electors.

As to the closed class, you will recall yesterday and this morning, Mr Merkel took you at lightning speed through many, many sections and he says, well, that shows it is not a closed class. All of the sections he took you to you might broadly describe as the slip rule. They are sections which enable alterations to the roll during the period not for enabling new enrolments but to deal with mistake or fraud or error or the like. So, they are exceptions which assist in producing a closed class of electors. They do not undermine the principle.

Now, your Honours, within that set of purposes, one might then ask what is the narrower purpose of allowing seven days from the close of rolls for additional enrolments, that is, for the provision which is now in the law consistent with Roach. The purpose of that is to achieve a balance.

On the one hand, it gives that extra seven days grace period by statute to those persons who will be prompted by the announcement of the election or the issue of the writs to fulfil the duty they should have fulfilled earlier. So it has that benefit. In that sense it tends to increase the opportunities for the direct choice, but the balance it retains is that it retains the essential discipline on people who have a duty to enrol to strive to comply with their duty because they know it is only an extra seven-day grace period.

That balance, we would submit, is a legitimate constitutional balance available to Parliament and, in our submission, in each of the majority judgments in Rowe – and Mr Merkel can say he was not challenging the suspension period then – but in each of the majority judgments there was a recognition that the seven-day period had the types of virtues I am mentioning which would enable it to be an appropriate parliamentary judgment.

If I could just go back to Rowe and indicate this from the majority judgments – just before I do that, your Honour the Chief Justice put to Mr Merkel a number of times that Rowe was about assessing the amending Act and its effect and whether it failed constitutional muster. He partially accepted that and then said but really Rowe has nothing to do with the existing Act and, in effect, the existing Act was not really there.

Your Honours will see from page 5 of Rowe, in Mr Merkel’s argument, he was the person – this is at about line 10 – he was the person who framed the case this way, and I quote him:

There was no substantial reason to depart from the seven day period enacted by the 1983 amendments. Any perceived mischief was not such as to justify the burden or limit imposed on the franchise.

About five lines from the bottom, he said:

There was no recognisable defect with the seven day period.

This is not a man who was agnostic about these matters. He put it to the Court on the basis of seven days has been the rule, it has been the rule historically by executive discretion or by statute for over 30 years and the vice he was attacking was that there is nothing wrong with a seven-day period but it is your departure from it that lacked justification. That says a lot about his attempt to treat Roach as somehow the linchpin of his argument in this case.

Could I then just go to the majority judgments to show that was the framework urged by Mr Merkel within which many of the issues were discussed. In your Honour the Chief Justice’s judgment, that is clear from paragraph 22, on which you were unkindly verballed yesterday, but it means what it says. The Chief Justice should never verballed, certainly not on such an excellent paragraph as this.

KIEFEL J: Nor puisne judges.

MR GLEESON: No. No judge should be verballed. Your Honour is correct. That is the framework within which your Honour looked at it, and in particular in paragraph 25 consistent with that, at the top of page 21, your Honour was discussing whether the law removed a legally sanctioned opportunity for enrolment and then indicating that it was the change that had to be considered and, as your Honour Justice Kiefel put to Mr Merkel, the question was framed as to whether the change caused a detriment and whether that could be, on balance, justified because it contributed to the fulfilment of the mandate. Now, that is the framework within which your Honour looked at it.

FRENCH CJ: And if one is looking at change, of course, one is not looking at some sort of baseline, I suppose.

MR GLEESON: No, and the Commonwealth’s argument of the case was an attempt to say that there was a reason for the 2006 amendment. It was to do essentially with the fear of future fraud and that reason was not accepted by the majority as justified. So could I then go forward to paragraph 60, where your Honour is referring to the second reading speech for the 1983 amendment which introduced the seven-day period, and your Honour refers to the speech describing the objective as making it “easier for electors to get on the rolls and stay on the rolls”. It provides there must be “a sufficient time between the announcement of an election and the close of rolls for that election”.

So there is the concept, that the announcement of the election has a tendency to prompt people who should already have been on there to get on there and the seven-day grace period, as your Honour noted then, operated for the following eight elections. At paragraph 66, your Honour rejected the argument that the amendments were necessary to deal with an existing problem of fraud, and your Honour considered further possible justifications and rejected them. At paragraph 75, your Honour recorded that the AEC:

had used the announcement of an election, coupled with the existence of the statutory grace period, to encourage electors to enrol or apply for transfer of enrolment in a context in which its exhortations were more likely to be attended to and taken seriously than at a time well out from an election.

So here we see not just a point going because of a failure to take it by Mr Merkel but we see express discussion of the legitimate purposes advanced by the statutory grace period. In paragraph 77, your Honour was then assessing the effect of removing that grace period and the particular vice was that it prevented:

an estimated 100,000 citizens from being enrolled or transferring their enrolment.

That was a diminution in opportunities, it was a significant detriment and it was not justified. In your Honour Justice Bell’s judgment with Justice Gummow, I could go to these parts if I might. Firstly, at paragraph 106, and this comes back to a question raised this morning, your Honours’ judgment was quite express as to the obvious legal effect of the orders, which was the amending Act was struck down and the 2007 election was to be conducted on the basis of the Act with the seven-day period.

Mr Merkel cannot shy away from saying he is now asking the Court really to do the exact opposite to what he presented in Rowe. He is now asking the Court to say that the 2010 election and the 2013 election were invalid and he points to nothing in the facts to suggest they have changed between 2006 and today. Indeed, he said yesterday the facts show that the position has been the same for the last 10 to 15 years; that was his expression. So that is a fairly important part to note.

Next, it is important at paragraph 125 at the top of page 50 that your Honour recognised that the powers of the Parliament in this area carry “a considerable measure of legislative freedom as to the method of choice”. That is consistent with many other statements to that effect. But, the submissions you have heard this morning would not be consistent with that statement of the law. Then, at paragraph 131, your Honour said that:

common experience suggests a range of causes of human conduct, beyond careless disregard of civic responsibility, which may lead to untimely enrolment or transfer of enrolment.

That explains the section 101(7). Your Honour is not there saying the primary parliamentary judgment that there should be a time for enrolment is one not open to Parliament, it is saying that it may be necessary for Parliament to take into account the likelihood that there may be some people who are untimely and, indeed, it has done so to a certain extent and the question is whether removing the seven-day grace period could be justified in the context of the franchise when one accepts these realities of human behaviour. Now, next at paragraph 133, your Honour correctly recognises, with respect, that there is:

no perfect correspondence between those enrolled and those otherwise enfranchised.

Now, the next sentence perhaps is what Mr Merkel uses to get into his fact case:

the efficacy of the administrative means available to facilitate the composition and accuracy of the roll will depend upon the resources made available by the legislation and the assistance given by changes in technology.

Now, we do not submit there is any error in that statement. The point is, where does that statement fit into the overall reasoning and it does not lead to Mr Merkel’s conclusion that constitutionally what the Court does is start from a premise that Parliament is duty-bound to try and allow every person to vote on the day unless the Parliament can point to some overwhelming reason why that would be impracticable. At paragraph 138, your Honour again noted that Mr Merkel was making no complaint:

that were it not for the changes made by the 2006 Act, the Electoral Act –

would be invalid. That is noted again in paragraph 140, and then he would seek to seize upon the second sentence of paragraph 140 and say, well, there is the hint. That is the case he is now bringing. But the way in which we would urge the Court to read that second sentence is not to say the Court here sits in judgment upon whether it was possible for Parliament to design a system where the roll closed 10 days after the writ or 12 days after the writ or 16 days after the writ and the Court conducted an assessment of evidence on technology and evaluative resources; rather, your Honour is simply identifying one of a range of factors which it would be appropriate for Parliament to take into account in designing the system.

Now, Mr Merkel gave an extreme example yesterday; what if the roll closed, as it were, at the previous election, or if the roll only closed annually and took no account of the circumstances closer to the election. Historically, there were such provisions, of course, but such provisions might have to be scrutinised, and the factor your Honour is referring to here might be a relevant factor for the Parliament to consider within a range of factors available to it.

Even as your Honour has framed it, it is the closure of the rolls closer to the election day. It is not the case which Mr Merkel finally committed himself to at the directions hearing before Justice Nettle, in a difficult afternoon we all remember, which is election day enrolment is his primary case; that Parliament must design a system to allow people to enrol on the election day, unless there is a substantial reason justified otherwise.

The final parts in your Honour’s judgment I would seek to go to are on page 57, at paragraphs 152 and following. Everything is framed about the 2006 Act, not about an attack on the suspension period. At paragraph 154 – Mr Merkel seizes on this paragraph. This is more evidence of your Honour reducing the election to the polling day, he says, when your Honour said:

the method of choice . . . fails as a means to what should be the end of making elections as expressive of the popular choice as practical considerations properly permit.

Now, we do not submit that there is any error in expressing it that way, once one understands that the popular choice may be expressed across an election process in a manner designed by Parliament and, of course, practical considerations will have a relevance in the design chosen by Parliament.

Finally, in your Honour’s judgment, when one comes to a very important paragraph in the reasoning, 158, it is clear – in the last two sentences, your Honour says this:

That many persons are stimulated to claim enrolment or transfer only upon awareness of the start of the particular electoral cycle is a phenomenon that was well apparent before the enactment of the 2006 Act . . . there are estimated to be some 100,000 persons in the present position of the plaintiffs.

That really is the underpinning for saying a seven-day statutory grace period provides a balance where it meets the needs of these people who are stimulated by the announcement of the cycle, but, as we would submit, also preserves some element of discipline and incentive in the system.

Now, finally, in Justice Crennan’s judgment, particularly at page 119 to 120, the critical reasoning is paragraphs 381 to 384. At 382, her Honour says that:

The federal electoral process, characterised by compulsory enrolment and compulsory voting, requires comprehensive and accurate Electoral Rolls. Such rolls will “guard” and “protect” the franchise by ensuring that persons eligible to vote in an election . . . will be able to do so.

Her Honour there is taking an approach similar to what your Honour Justice Keane put in argument, that one has to assess these matters in terms of a system as a whole that is designed and the roll plays this important role when taken together with these other systemic elements.

Everything her Honour then says in 382 and 383 is about the particular problem of removing the seven-day grace period and excluding, perhaps, 100,000 people. And her Honour said in 384:

In all those circumstances, the impugned provisions have not been shown to be necessary or appropriate for the protection of the integrity of the rolls, as that object was advanced by the Commonwealth.

Importantly, she says:

First, this is because the Australian Electoral Commission had no difficulty in processing the volume of late enrolments which occurred with the previous seven day cut-off period. Secondly, to seek to discourage a surge of late claims for enrolment by disentitling or excluding those making them constitutes a failure to recognise the centrality of the franchise –

So, our proposition would be that, accepting the correctness of Rowe as a decision and carefully attending to the reasoning of the majority judgments, it, if anything, is supportive, supportive of the notion that the seven-day grace period, a statutory grace period, achieves an appropriate constitutional balance when one looks at the larger elements of the system.

KIEFEL J: In your written submissions at paragraph 64 you say “precisely what is meant by disqualification calls for further enquiry on the different scheme in this case”. Are you going to expand on that?

MR GLEESON: Yes, your Honour. I might come to that now. The suspension period has two effects. As we know, the first is to prevent fresh enrolments after the close of rolls and the second is to prevent fresh transfer applications. I will deal with those separately if I can.

As to fresh enrolments, our proposition is that there is no disqualification in a closure of rolls seven days after the issue of writs because any persons who apply after that date have had the benefit of a combination of things: first, their entitlement to enrol at an earlier point in time, they have had the duty to enrol, and they have had the announcement of the election and the issue of writs to inform them, if need be, that they are already late and they have one further chance to comply with their entitlement and duty. Any person who, in that set of circumstances, still does not enrol within that time cannot be said to have been disqualified by Parliament from voting.

As to the second limb, which is the transfers, these are people who are and remain entitled to vote in the election. All that is occurring is that they will be voting in the division or the State, assuming there are divisions, which was referrable to their residence up until a very recent date.

NETTLE J: Mr Merkel is right, though, that if they are honest they will not be able to vote for the lower house, will they?

MR GLEESON: I will just check that, your Honour. Section 229, your Honour. Could I go to that section - - -

NETTLE J: Thank you.

MR GLEESON: Subsection (4) is the critical section. What that shows is the reason you are being asked about your address is not to establish that you can only be voting in the division you live in, but it is part of the identification of who you are. So if you say, “I now live in X and I am on the roll in Y”, under subsection (4), the officer may ask you further questions to establish whether you are the person. So you would then say, as per the second plaintiff, “I moved last week and I provide evidence of that” and then you would retain your entitlement to vote in your correct division.

GORDON J: According to the roll?

MR GLEESON: Yes. Taking up your Honour’s question, Mr Merkel, many times, has accused us of confusing the roll with the certified list. The roll is the roll is the roll. That is the ultimate determinant of “you are entitled to vote”. The certified list is a means to an end created from the roll and it is the practical means, of course, by which the people at the polling booth decide whether you are entitled to vote or not. Always it will be a servant of the master which is the roll and any questions about your true entitlement to be on the roll will be determined in the appropriate manner through the Act.

GORDON J: I think section 208(2) makes that clear that the certified list is derived from the roll.

MR GLEESON: Yes. It is a means to understand what is on the roll but if there is a discrepancy the roll, subject to objections, et cetera, is the repository of all wisdom. So, in this second category of transfer, in our submission, the person retains the entitlement to vote. It may be, in the unusual cases like the second plaintiff, they will vote in the division with which they had the appropriate connection up until a very recent date.

That raises the question that your Honour Justice Keane put in argument as to where is the – perhaps I am wrongly paraphrasing – but where is the constitutional imperative that you can only design a system whereby – if you have divisions – the person votes on the day in the division they live on the day. One just cannot get that form of stricture out of the language of the section.

Your Honour referred to section 29 which, of course, in its last paragraph contemplates the default provision would be that each State is a single electorate. Divisions of themselves are only an option available to the Parliament. They cannot be formed out of parts of different States, we are told, but, apart from that, they are a convenient mechanism available to Parliament if it so wishes.

So, coming back to your Honour Justice Kiefel’s question, we would press in relation to the transfer situation that on no view does this scheme constitute a disqualification which requires further testing. I suppose, so it is clear, even in the event that the reading I have sought to place on the four majority judgments in Rowe was not accepted in full, we would, in any event, submit that, as I have said, your Honour the Chief Justice’s judgment was heavily hinged around the removal of what had been a long-established legislative opportunity.

That is what was being assessed as a detriment, to use the language your Honour used. We would submit your Honour’s judgment is not authority for the proposition that any scheme which does not permit every person who wishes to vote on polling day is a disqualification.

FRENCH CJ: I taxed Mr Merkel, as you noted, with the question whether he was resting his argument upon a premise of a contingent validity, contingent upon changing facts and circumstances. Of course, he is putting his case to us, so far as detriment is concerned and so far as alternative measures are concerned, on the basis of factual matters which are set out in the special case book.

It seems to me that it is arguable that to rest the argument as to validity of the suspension period upon a set of factual and legal matters which are of an inherently changeable character involves the premise that validity can change over time. Do you engage with that premise, or do you simply, as it were, accept it for the sake of argument, and then just look at the contemporary situation?

MR GLEESON: We would seek to do both, your Honour, because as a premise, he seemed to be saying that the Parliament, and thus the Court on review, sits there and looks at the very same textual language of the statute, the same text of the Constitution, and says have resources and technology changed sufficiently from last year or last election that you should change the number of days of the period.

Now, we contest that as the premise of what sections 7 and 24 require of the Parliament, or of the Court. We contest that. We contest it at the next level of – his assumption is that the only legitimate purpose of a scheme is to maximise opportunities to vote on the polling day. If one rejects that constitutional premise and says there are a range of circumstances that Parliament could take into account, then one is even further removed from conducting judicial review on a technology case.

Then, at the final level, what has he actually established in the facts? He certainly has not established a change in the last 15 years; he acknowledges that. But I am not sure, even from the special case, one can say the facts now are different to what they were in 1902. We know that computers are available now.

There is no fact to demonstrate that real time updating of the roll can occur and be communicated to the polling booths. So he really has not from those facts, whether you look at them at a point in time or by a change in a point of time, gone very far, we would submit. But, your Honours, I just wish to keep emphasising it is that there are a range of legitimate purposes available and if one thinks, for instance, back to the earliest Acts, which your Honour reviewed in Rowe where the roll was shut, as it were, well before even the election process, the choice was whether it will be an annual roll, and then someone said, well, what about a six monthly update?

So the modern notion that the roll can actually remain open even into the electoral process is itself a shift in thinking, a shift in policies and priorities, and we do not say that cannot be done, but it does tend to demonstrate this is not simply a case about review of technology.

Your Honours, returning to our outline on page 1, the matters that we then sought to deal with from paragraphs 2 and following proceeded in this order. Firstly, that the entry point for this case is not simply parsing Rowe or Roach but at a higher level understanding what is Parliament’s power and duty with respect to this electoral system and the propositions in paragraphs 2 to 4 we would make.

It is with that entry point that one then looks more closely at the particular Act, and I have sought to make the proposition in paragraph 5 that it is a fundamental choice within this Act to identify early within the electoral process that class of persons who will be the electors for all purpose within the process and I have sought to give the reason why that would be an available parliamentary choice.

In paragraph 6, we have identified some of the areas where your identification as an elector on the roll may engage a certain part of the overall process of direct choice. Then we have sought to just summarise some of the legitimate purposes which I have mentioned. The first is orderly and efficient conduct of elections which includes that the claims to participate can be made, investigated and determined with conclusive effect for the election as far as possible in advance of the election process or even the polling day rather than producing delay and uncertainty by being raised up to and post the election day.

We have also indicated that there are a range of additional purposes. Could I just explain paragraph 8, your Honour? We have indicated that because the roll is then shared with the States and Territories and has a larger purpose within the electoral system of the nation, we have got that fact. We have got the fact that the roll is used to distribute the States and Territories into divisions. It is used for the registration of political parties and if I could just go to the fourth of these facts, section 90B. In item (1):

the certified list of voters for the Division for which the candidate is seeking election –

is to be made available:

as soon as practicable after the close of the Rolls –

to the candidate in the House of Representatives. So that is a further use which, obviously enough, enables the candidate to know the people who he or she might wish to communicate with. So that range of purposes there in paragraph 8, they are all assisted by the roll closing by the suspension period.

BELL J: Can I just inquire, just taking you back for a moment to your paragraph 5, I understand your case is that it is within the range of choices for the Parliament that the selection is made that the electors who are to participate in the process of choosing members should not fluctuate throughout the process. So that is the significance of knowing who is on the roll at the point, indeed, of nomination.

MR GLEESON: Yes.

BELL J: Now, I understand your broad point that this is a choice. Do you identify a particular reason why there is a suggested value in knowing that the class is closed at the point of nomination?

MR GLEESON: Well, the reasons are that that certainty enables the candidates, the parties and the electors to then know who they can communicate with as part of the class and who can take up the opportunities and duties within the process. As I said before, I am not saying it is the only way you could do it but that is the value of it.

BELL J: I understand.

MR GLEESON: One way of thinking about it is this. For many purposes you need to use a roll for a point in time end. One needs to be on the Roll of the High Court to appear in Court. That is a point in time event so it is fairly easy to say when the roll closes it must close prior to standing up or, perhaps, 48 hours beforehand so the Registrar can supervise people.

This is very different because a roll has its primary purpose in relation to a process which occurs over a period of time. It immediately just throws up a choice, do I say the roll closes effectively before the first critical step in the process, the nomination and then we have the certainty and the order and the benefits of that being the class for the process - that is the Commonwealth choice, the traditional one - or do we say, well, at the risk of some detriment to certainty, we will have a shifting class where more people can get on the roll during the period subject to what is administratively convenient.

Now, once one does that, one really has a different process of direct choice going on where, from the candidate’s perspective, you do not really know everyone you should be trying to solicit the votes from. That has a range of impacts on the flow of communications within the electoral process and if more people over time under the State model leave it until the last day, that impact will become greater and greater and greater.

The reason I went to 90B - it is one of the earliest steps in the process where the certainty of the closed class is important because the candidate starts sending out election literature to those people. Now, one of Mr Merkel’s cases is that if section 155 goes, then sections like 90B have to go as well because they hang off the close of the rolls, but it already illustrates the very large interference that is occurring with parliamentary choice that you can no longer have a system where the candidates know the electors.

Your Honour’s question was what are the values behind it other than certainty? Well, certainty leads to knowledge, knowledge leads to action, but I think the value ultimately of the free political communication between the candidates, the parties and the identified electors is quite a significant value in its own right.

Your Honours, I was just in paragraph 8 identifying some of these additional uses of the roll and the importance of the roll and the closure of the roll at the - early point assists in achieving these purposes. The closure of the roll, with its incentivising effect, has the tendency of keeping the roll up to date on a continuous basis.

This is the additional point that goes beyond the pure election process, that when for instance you are doing distributions and redistributions which are occurring outside the electoral process or when you are sharing the roll with the States and Territories, there is a value in the roll being as accurate and up to date as possible.

If there is the incentivising effect that, “I’ve got my seven-day grace period but no more”, that tends to say to people that it is fairly important to try to comply with your legal obligation to get on the roll at the right time and that has the tendency to keep the roll more up to date for all these extra purposes. That is the point we would seek to make in paragraph 9.

Your Honours, as to the history, I have already referred to the history in England and Wales. As to the history in Australia, we have provided the Court with a bundle of the legislation which your Honour the Chief Justice referred to in Rowe at paragraph 12, being the colonial legislation which, in effect, governed the first election in Australia, governed the first election because of the default provisions such as sections 9 and 10 of the Constitution, and the like.

We have also sought to provide your Honours, which your Honours’ associates may have, with a one-page summary of that legislation; if that summary could be located, and if I could rely upon that. What the summary demonstrates is that for the first election in the Commonwealth, the roll closed substantially before the polling day, to put it at its lowest level, but indeed in some cases such as Tasmania, Victoria and Queensland, the roll was done annually. Certainly, there was no suggestion of the distortion case that Mr Merkel is now running, that you had to be able to vote on the polling day in the place you lived.

We have dealt, particularly in point 4, with Western Australia and South Australia which have a slight twist to them because Western Australia, on the face of it, looks a little like Mr Merkel’s second alternative which is the roll is closing at a time working backwards from polling day, but we have also referred to other provisions in Western Australia and South Australia which said you had to be registered for at least six months. So, the net effect of that seems to be it is not his second alternative. New South Wales is, effectively, or was, effectively, the provision of the Commonwealth Act considered in Rowe.

So, how we would seek to use that material, your Honour, is that it does not answer the entire case but when one looks at the power of the Parliament under sections such as 9 and 10, the power to bring in the new uniform regime for the nation, that was a power to be exercised against a background where the framers understood that there would be a roll, that the roll would close in advance of the polling day, significantly in advance of that.

There were a range of mechanisms by which a roll could be closed and these values in the roll in terms of achieving an orderly conduct of an election were instantiated in the State and colonial legislation and that helps to understand the range of choice available to the Commonwealth Parliament under these provisions.

Your Honours, we then move at points 12 and following to Rowe, and I have made our primary submission on Rowe and our primary submission that there is no disqualification in the present case. Our alternative submission is of course that, if necessary, there is a substantial reason, or, put more correctly, the plaintiff has failed to prove the absence of a substantial reasoning.

Your Honours, as to point 14, could I just say one thing about the form of proportionality testing that would be available in this case and otherwise leave that topic to the Solicitor-General for South Australia? We have made the submission that the Court would not readily transfer over to the present context a structured proportionality of the McCloy type.

Could I just say one thing why that is so? In one sense, of course, the Lange constraint and the Roach/Rowe constraint come from the same provisions. They come from provisions like sections 7 and 24, et cetera, but something radically different is going on. As the plurality pointed out in McCloy, the effect of the Lange principle is to discern an area of freedom of political communication which is a legislative constraint which constrains all legislatures in the country which can modify the common law and may, on one view, constrain executive action, and it needs to be qualified. So, having established an area of freedom, it needs a qualification and the plurality adopted a structured approach to that qualification on legislative power.

Something a little different is occurring in provisions like sections 9 and 10 where Parliament is being given a positive role to design an electoral system, being given the power to do so and there is an expectation that it would, in due course, exercise that power. In making that choice, it needs to choose between a range of options and it needs to balance a range of values.

The constraint on Parliament is really one of the outer edges, namely, have you chosen something which by reason of its mix of features has gone beyond a system which answers the description of “directly chosen by the people”. So one is not taking an area of freedom and finding its qualification. One is starting with an area where Parliament is the designer and one is looking at the outer constraints at which Parliament’s design does not meet this description of “directly chosen by the people”.

KIEFEL J: Would you go so far, though, to say that a provision which simply and directly effects a disenfranchisement is not to be subjected to – is not required to be justified by some kind of proportionality testing?

MR GLEESON: No, and for such a provision the Roach approach remains adequate and correct and sufficient.

KEANE J: Would you not just say that a provision to that effect is one which does facilitate direct choice by the people and it is just a question of looking at the statute, looking at the Constitution and if one can see that that is its effect, then it is invalid.

MR GLEESON: Yes. Your Honour the Chief Justice asked Mr Merkel about the reasoning in Roach itself and that reference to arbitrariness in Chief Justice Gleeson’s judgment and that was to say, well, what is the basis upon which you have chosen this means of disqualifying prisoners and what relationship does it have to the seriousness of offences and the like and I cannot find any relationship so it is just not direct choice.

So we would be urging, as it were, a minimalist approach to the exercise being done – minimalist as in one is just testing whether the system falls outside what will be a fairly broad range by reference to has it facilitated direct choice of the people “of the State” in the case of section 7 and “of the Commonwealth” in the case of section 24.

Your Honours, then the points in paragraphs 15 and 16 I have sought to deal with in answer to your Honour Justice Kiefel’s question and when one descends further into absence of substantial reason, we would be urging that even if one reaches that question, in the present case it can essentially be answered by comparing the constitutional text with the statute and the inquiry into the facts is not apposite if the inquiry is conducted. It does not advance Mr Merkel’s case any further.

Paragraph 19 is really the matter that I started on out of order, which is that the State provisions on no view are achieving the same purposes. They are achieving a different mix of purposes, a choice not to have a single class but to have a class which may expand at various points in the process, a choice which is likely to encourage delays and uncertainty.

Now, your Honours, could I just explain what is the last little point in paragraph 19? There is an assumption, factually in Mr Merkel’s case, that if you allow anyone to turn up on election day who has not enrolled, you will end up with more people voting than you otherwise would, that is, you would maximise the actual number of people who vote.

He has not demonstrated that is in fact the case. It may be the case, but it may not and it will all depend on human behaviour. If you leave it to everyone to choose whether to enrol and vote till the day of the election, the very type of human nature that is referred to in your Honour Justice Bell’s judgment in Rowe is likely to lead to a situation where many people leave it until the very last minute and many people who leave matters to deadlines, often do not meet the deadlines or the night before, they say, for all their best interest and intending, in fact there is no point turning up tomorrow because the result of the election is clear. It has been declared this morning in the newspaper who is ahead - 54:46, whatever.

So, what is likely to happen, and none of this can have parameters around it but that some people will leave it so late, and this is part of the fear of the Electoral Commissioner, that people who in fact are trying to get on the roll on election day have left it too late and just do not make it. From the Electoral Commissioner’s viewpoint, how does he or she anticipate how many resources to send out to the polling booths for the people turning up at five to six, wishing to fill out an enrolment form and/or a provisional vote?

At the end of all that process, where is the assurance you will necessarily have maximised the number of votes and in the course of all this, you have weakened the incentive of people to get on the roll and if I could just perhaps conclude on that, your Honours, on page 129, and this is descending too far into the detail but it shows the problem of even opening the special case book at this part, at 229 there is a table at the top which shows the Victorian experience.

FRENCH CJ: This is at 129, I think, is it not?

MR GLEESON: Yes, I am sorry, your Honour. At 129, paragraph 154, table 18, the Victorian experience, if you look at the last column what that shows you is that in Victoria there has in fact been some increase in the people enrolled after the issue of the writ between 2006 and the 2010 and 2014 elections because of election day enrolment. You can see that in the second-last column. It is 33,000 extra people in one year and 51,000 in the other.

Now, even stopping there, that is telling you, just looking at the change between 2010 and 2014, more people are leaving it until the last minute. If you look at the third-last column, something different is going on. These are the people who put their applications in as per the Commonwealth system and that number has declined from 57,000 to 38,000 or 37,000. That is showing you the weakening of the incentive for people to get on the roll. It is showing you what is occurring at various stages in the process.

Now, the legal submission is simply that it would be within the parliamentary choice to determine how to balance these objectives and there can be no certainty that the Victorian model will in some sense maximise the number of people voting.

Your Honours, I have gone a little quickly at the end. Could I be permitted over the adjournment to see whether there is anything substantial I have left out? Otherwise, I am close to the end.

FRENCH CJ: Yes, very well. The Court will adjourn until 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Your Honours, it turned out I had not forgotten as much as I thought I had forgotten if that makes any sense. We have provided through your Honours’ associates a note which seeks to summarise the effect of the three State proceedings; the three State statutes. Hopefully, that will also summarise the extent to which they are achieving a different set of purposes in a different fashion.

Your Honours, the only topic I had forgotten was severance – that, I think, was a Freudian mistake. Can I just say this about severance? It arises only in the alternative, of course. If your Honours accepted our primary submissions, then nothing I say in the next three minutes is of any relevance. If the Court reached severance, the applicable principle we would urge was that section 15A of the Acts Interpretation Act 1901 would permit a form of severance which would preserve sufficient of the core provisions of the Act to have the next federal election.

The manner in which section 15A would operate as a matter of principle, we would submit, was explained by your Honour Justice Gageler in Tajjour. If I could just give the reference, but not take the Court to it - Tajjour [2014] HCA 35; (2014) 254 CLR 508 at paragraph 169, where your Honour said that the effect of section 15A, by erecting a statutory presumption, was that there should be severance unless there is:

“a positive indication [appearing] in the enactment that the legislature intended it to have either a full and complete operation or none at all”.

So, that is the test. The difficulty in applying that test is that, because this is in the alternative, I have to act on the assumption you have rejected the submissions I have made this morning and, in that world, the closure of the rolls and suspension period do not have a central integrated part in the scheme that I have sought to argue they do have. So, in that world, we would argue that section 15A could be used to save, as I have said, sufficient of the Act to have an election.

What I mean by “sufficient of the Act” is that the suspension provisions go, most probably section 155 has to go – the closure of the rolls – plus those that hang off it which are three provisions – 90B, 109(2) and 152(1)(a). But what would be left would be an Act, admittedly operating very differently to the current Act, where the Commissioner’s duty is to keep trying to process as many claims as can be done practically up until shortly before the polling day.

Obviously, that is a very different Act to the present Act but the question is whether there is a positive indication that Parliament intended the Act would have a full operation, or none at all, and, at least one factor to bear in mind in applying that test would be that because this is the Electoral Act and because there can be situations, as, in fact, is the present situation where there is no Parliament, the alternative of having no Act produces draconian consequences and Parliament may not have intended an “all or nothing” situation with that being one of the possible outcomes.

If the Act is not severed – if the impugned provisions are not severed the alternatives, none of them are appealing. One is that the State laws revive, as it were, because of the effect of provisions like sections 9 and 10. The State electoral laws are varying in their terms. Some of them have the same terms as the federal law and therefore in effect the same vice. That is one alternative. The other alternative is there is simply no law for an election.

The ability to recall the Parliament is difficult, to say the least, and whether section 61 authorises the Governor-General to promulgate an election law is a novel question. So while severance cannot be decided merely because the alternative is very unattractive and must be decided under the principle of section 15A, our alternative submission is the Court could and should engage in some severance. Unless your Honours have questions, that is what we wish to put.

FRENCH CJ: Thank you, Mr Solicitor. Mr Bleby.

MR BLEBY: If the Court pleases. I propose to supplement just very briefly the State’s written submissions on the topic of proportionality and McCloy, in respect of which submissions I do adopt what the learned Solicitor for the Commonwealth has already submitted. The starting point for that is the position where if we have arrived at the event that a relevant disqualification that does require a proportionality analysis is identified, then to the extent that the plaintiff urges on the Court, and it does, a proportionality analysis that employs the steps articulated in McCloy, South Australia urges against such a course.

The first proposition is really a grounding observation and that is, of course, in any given constitutional setting where proportionality may be engaged as a tool for assessing the validity of a legislative means to an end, the appropriateness of that tool will depend on the particular constitutional setting and the historical and institutional background. That was the statement that the majority of your Honours the Chief Justice and Justices Kiefel, Bell and Keane made in McCloy at paragraph [72].

Thus, for example, the majority judgment in McCloy observed that the European concept of margin of appreciation is not applicable in the Australian context of determining limits to legislative power affecting the implied freedom. That was at paragraph [92]. But aspects of alternative constitutional jurisprudence can be instructive and it was this observation that the majority in McCloy employed on recognising the utility of a rights-based proportionality jurisprudence as a tool or being instructive for determining the reasonableness of legislation that restricted the implied freedom.

So the second proposition then is that the plaintiff’s submissions really appear to treat the staged formulation of proportionality that was articulated in McCloy really as a necessary elucidation of a substantial reason formulation that was articulated in Roach and Rowe. That appears to be built in really from about paragraph 45 of the plaintiff’s written submissions and is consistent with what I understood to be Mr Tran’s submissions earlier today. But the importance of - - -

KIEFEL J: The notion of a substantial reason is the type of proportionality that was acknowledged in Rowe.

MR BLEBY: It is, your Honour. I certainly do not shy away from that. We are looking at a proportionality test. It is what content or form we give that tool in the particular constitutional setting, not that it is not a proportionality test.

KIEFEL J: How do you test for a substantial reason?

MR BLEBY: Is it a rational, is it arbitrary - that is a sufficient approach. That was sufficient in Roach and indeed in Rowe. If there was a reason that was rational but not arbitrary, then in the circumstances as I will come to when we are talking about simply a power with a particular limit, there is no need to go further because of course the importance of the formulation in McCloy, that formulation was designed to make the analysis that had been articulated under the second limb of Lange more transparent.

But here that jars because we are not concerned with a constitutional right to vote, neither are we concerned with an implied freedom that has a relatively indeterminate content if it is expressed just in terms of its existence. This constitutional limit of course does draw from the same constitutional source, sections 7 and 24 in particular, but it is a limit on power that is inherent in the term “chosen by the people” and, of course, the clearest contemporary understanding of that limit is the requirement that there is a universal adult citizen franchise.

The analysis, then, is going to occur at a level that is far more determinate than that of the implied freedom. It is a narrower thing. And, exceptions will be recognised to laws that appear to impinge upon that.

KIEFEL J: Well, the proportionality analysis invoked in the implied freedom is invoked because the freedom is burdened and it is necessary to determine the limits of legislative power to do so.

MR BLEBY: Yes.

KIEFEL J: In this case – in a case of this kind – would you need something as profound as disenfranchisement to bring in those kind of concepts?

MR BLEBY: You would need – it may be so. You would need something that is capable of being described as distorting the concept as chosen by the people and disenfranchisement, of course – put de minimis nature to one side – it would depend on – and, really, I am picking up here from the learned Solicitor’s submissions – on the entire notional disenfranchisement within the entire electoral process. We do not, for example, look simply at polling day. I adopt the Commonwealth’s submissions on that. So, while you might say there is a disenfranchisement as at polling day in the sense that there is an identifiable class of people who cannot vote, you must look at that in the context of the electoral process. So, I do not - - -

KIEFEL J: But, your submissions assume that the - - -

MR BLEBY: Assume we have got there.

KIEFEL J: Got there. Yes, I understand.

MR BLEBY: As is clear enough, to date the proportionality test that has been identified is that in Roach and Rowe described as a substantial reason, and we submit that that is all that is required in what is going to be always a much less nuanced question, in this context. What I mean by that is that it was quite unnecessary in Roach to look for the availability of alternative means to achieve the stated purpose. I do focus on the necessity aspect of the McCloy test. In Roach, of course, the indifferent treatment of imprisonment for token periods – mandatory sentencing, strict liability offences, that was held to be arbitrary and capricious. It simply was not necessary to look for alternative means. The identification of caprice lay in the very nature of the limit.

But, when it came to the question of a three-year period of imprisonment as a criterion, when that was assessed against the historical background of 19th century history, the development of the constitutional debates, common assumptions of the time and the fact that there had always, essentially, been a period of imprisonment that had been recognised as a disqualifying criterion, that took it out of the realm of arbitrariness and indeed, of course, it had a certain affinity with the three-year electoral cycle.

So, again, there was no need in that framework to then ask another question, what other alternative measures are there, that would have been to super-add a requirement. It does not serve the same purpose as providing transparency to the second limb of Lange.

So, there is no reason, in my submission, to think that the McCloy extrapolation of proportionality testing in the implied freedom context has subsumed that that was articulated in Roach and Rowe. But, also, there is reason to think that it should not. Specifically, if we move past the substantial reason test, as the Commonwealth has sought to apply in this case, if we get to that point and we ask what alternatives there would be to the current arrangement, we run the risk - and that is, of course, assuming that we are talking about identifying an alternative that does, indeed, serve the same purpose - but we run the risk of moving into legislative policy decisions and we also run the risk, for reasons that were raised by your Honour Justice Keane yesterday and your Honour the Chief Justice today, of creating constitutional instability.

The only other matter I really wish to address is that submission of Mr Tran that, even if we say, yes, the test is a substantial reason test, that the apparent alternatives are not irrelevant. The submission was made that the availability of alternatives can tend to indicate the unreasonableness or

arbitrariness of that which was chosen. That, in my respectful submission, employs a non sequitur because even if we assume that the alternatives that are mooted do reach the same purpose and the solicitor has addressed that, all that does is then super-add a requirement that denies, in my submission, the breadth of the power that exists from sections 8, 30 and 51(xxxvi). May it please the Court.

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

MR MERKEL: If the Court pleases, my learned friend, Mr Lim, will be doing the reply.

FRENCH CJ: Thank you. Yes, Mr Lim.

MR LIM: If your Honours please, there are four topics that I wish to address in reply. The first is the correct starting point for the constitutional analysis. The second is the proposition that the purpose of the suspension period is to define a single and fixed class of electors to participate in the process of choosing candidates. The third topic is the proposition that there is a relevant disqualification occasioned by the suspension period that is impugned including, in particular, the disqualification of electors who transferred from one division to another, and the fourth topic are some factual matters that arise from the learned Solicitor-General’s submissions about maintaining the accuracy of the electoral rolls, the orderliness of the electoral process and the resources involved in implementing any alternatives.

In relation to the first topic, the Commonwealth seek to emphasise that the Commonwealth Parliament has a broad legislative discretion to choose between a range of available means to give effect to the constitutional mandate of direct choice by the people. That discretion, of course, ends where relevant constitutional limitations begin and the limitation engaged in this case is that of popular choice and, in our submission, deviation from that limitation, or detriment in respect of it, demands a substantial reason.

There is nothing incongruous, in our respectful submission, nor unusually unstable, about validity changing over time where validity depends not only on subject matter characterisation but also on conformity with a purpose or support by a reason.

I could give the Court a reference to a decision of the High Court which is not on the list of authorities. The decision is Armstrong v Victoria [No 2] [1957] HCA 55; (1957) 99 CLR 28. It is an old section 92 case concerning the reasonableness of a restriction on free trade. At page 73 in the judgment of Justice Williams, with whom Chief Justice Dixon at page 49 relevantly agreed, said that there was:

no reason why an Act which is valid may not subsequently become invalid from change of circumstances.

In my submission, the question here is whether there is a substantial reason today. It is not germane to inquire whether there was or was not a substantial reason in the past.

The second topic to address in reply is the proposition that the purpose of the suspension period is to establish a single class of electors fixed at the time of closure of the rolls, or commencement of the suspension period.

There were really three purposes that the Commonwealth advanced the submission in aid of. The first was to decouple the choice referred to in sections 7 and 24 of the Constitution from the polling day. The second purpose was to provide at least an air of rationality for calculating the suspension period by reference to the issue of the writs, rather than by reference to the date of the poll, and the third purpose, as I understand the submission, was to facilitate political communication between candidates and electors.

If I could just deal with that third purpose very quickly. In our submission, political communication in Australia facilitates choice by the people, referred to in sections 7 and 24, but not the other way around. Political communication is the servant and not the master. It is also not correct to say, with respect, that absent a suspension period, a candidate cannot know who the electors are.

At most, what can be said is that a candidate cannot know who all of the electors are, and so to the extent that the Solicitor-General seeks to draw some irrationality from allowing continuing enrolments through the suspension period, there is a much smaller effect than he contended for.

The proposition that there is one class of electors really fails at the first hurdle which is that it is not a purpose which emerges from the statute by any ordinary processes of construction as it must if it is to be sustained. Mr Merkel, in-chief, took the Court to the provisions in the Act that we say deny the single class.

Another relevant denial of the single class is of course the category of transferring electors and I will deal with this as a separate topic in the reply. Those electors are part of Mr Gleeson’s single class as at the commencement of the suspension period but by polling day they are no longer part of that class. That circumstance denies the proposition that there is a single class or that that is a purpose of the suspension period.

At paragraph 38 of our submissions in-chief we also refer to the explanatory memorandum which indicates that the purpose of the suspension period was said to be a practical purpose, a practical purpose of enabling the compilation of certified lists. It is not the case that the suspension period embodies a longstanding value judgment about the appropriateness or the importance of maintaining a single fixed class of voters.

As to the decoupling of choice referred to in sections 7 and 24 from the choice exercised on polling day, the Solicitor-General took the Court to a number of cases, and if I could ask the Court to go to Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77. Mr Gleeson took the Court to page 100 of that report but he did not take the Court to page 99 and if I could ask your Honours to go to page 99.

In our submission, the relevant proposition to emerge, about halfway down the page, is that there is a distinction, at least a conceptual distinction, between what the Court referred to as the “act of choice” or the process of “being chosen”. It may be accepted that in Sykes v Cleary, section 44 of the Constitution was construed as referring to the process of being chosen. The same is not true, in our submission, of sections 7 and 24, and it is borne out in that same paragraph where the Chief Justice and Justices Toohey and McHugh say that:

The people exercise their choice by voting –

Footnote (44):

So much is implied from s. 24 of the Constitution, read in conjunction with ss. 7 –

and others. Sections 7 and 24 do not refer to the process of choosing. They refer to the act of choice on polling day. That is consistent with Justices Gummow and Bell in Rowe at paragraph 160 to which Mr Gleeson also referred and it is also consistent, if I can mention these briefly, with some of the sections that are referred to in Langer, the other case to which the Solicitor-General referred, in particular, sections 8 and 15 of the Constitution refer to choice or its cognates in circumstances where it cannot be referring to the process of choosing in the sense that the Commonwealth advances. I do not ask your Honours to go to those provisions, but that is my submission.

On the topic of disqualification, the Solicitor-General submitted that there was no disqualification occasioned by the impugned provisions for three combined reasons: that everyone has had a prior entitlement to be enrolled; that they have had a duty so to enrol; and that they have had the benefit of the announcement of an election to prompt them to comply with that duty.

In my respectful submission, this really seeks to reagitate a proposition that was rejected by a majority in Rowe. It is dealt with in our reply submissions at paragraph 12, and the relevant paragraph references in Rowe are 28 and 78 in the judgment of your Honour the Chief Justice, paragraphs 157, 159 and 160 in the judgment of Justices Gummow and Bell, and paragraph 381 in the judgment of Justice Crennan.

If I can illustrate the point by reference to the particularly stark disqualification of transferring electors in this case - it is important for two reasons. One is because these transferring electors are blameless. We do not accept that blame is irrelevant, but they are blameless; they have not failed to comply with any duty to enrol. It is relevant for a second reason, which is that it denies the “one class” theory. These transferring electors start in Mr Gleeson’s single class and end up outside of it.

Mr Gleeson took the Court to section 229(4) of the Act, and his submission was that an elector’s provision of his or her address goes to establishing his or her identity. If your Honours would read that with section 235(1)(b), if a person’s address – that is the address they give in answer to the question they are asked on polling day – does not appear on the certified list, such a voter is funnelled into the provisional voting sections, and such a provisional vote would be dealt with in accordance with the scrutiny rules, Schedule 3.

As a result of that, if an elector gives an honest answer to the question of where they live on polling day, that address may not appear on the certified list if they have been at that address for 30 days ending during the suspension period, and as a consequence they will not be entitled to vote. That consequence is borne out in the agreed facts.

Page 110 of the special case book in paragraph 80 and in table 8 that sits just above that paragraph, your Honours can see that of the provisional votes cast there is a much more significant number of those votes which get counted in the Senate election than in the election for the House of Representatives.

The explanation given in paragraph 80 is that a vote is rejected in the House of Representatives if it is not valid for the division though it may remain valid for the State. These are electors who have moved from one division to another within a State and have their votes counted in the Senate but not in the House.

KIEFEL J: Mr Lim, the references you gave to Rowe in paragraphs 28 and 78 of the Chief Justice’s reasons, the word “disqualification” is not used. The words are “damage to the extent of participation” and “detriment”.

MR LIM: Your Honour, I referred to those paragraphs for the proposition that the detriment, even if contributed to by the failure of those persons to fulfil their duty is still a detriment of concern. The proposition we advance is that just because an elector has not complied with the duty to enrol, it is not a reason to discount the detriment or, in an appropriate case, the disqualification that results.

In relation to the transferring voters, even if I am wrong on construction or operation of the scrutiny rules, or even if there are electors who are canny enough to answer the question posed by reference to their old address and not their new address so as to receive a ballot paper, that consequence, in our submission, is also constitutionally suspect and in need of substantial justification because of the geographical distorting effects that that has on the nature of the popular choice.

It is dealt with in our written submissions but if I could provide a further reference to the Court. Section 24, as your Honour Justice Keane observed this morning, does refer in terms to “people of the Commonwealth” and not to people of one division or another. But, in our submission, the accommodation of representative government to the federal system requires that those words be read as the people of the Commonwealth voting in appropriate geographical units and one gets that from section 29.

The relevant case references are McKellar v the Commonwealth (1977) 139 CLR 527 at 552 in the judgment of Justice Stephen and McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 275 and 285 in the judgment of Justice Gummow.

I come finally to some of the factual matters that bear on propositions about maintaining accuracy, orderliness and resources. In terms of accuracy, if I could refer your Honours to the special case book at page 95, paragraph 22, the agreed fact is that the calling of an election is a significant catalyst for people to enrol or update their enrolment.

The suspension period, in my submission, operates to close off the rolls to new enrolments, or updated enrolments, at the very time when it would be most effective to receive those enrolments and updated enrolments. It does not promote accuracy, in my respectful submission, to maintain a suspension period of the kind impugned.

In relation to orderliness, the Solicitor-General sought to develop a submission that the Victorian model – referred to at the special case book, page 128 – illustrated an up-tick in dilatory conduct by electors taking advantage of extended opportunities to enrol. I refer the Court relevantly to special case book 127 at paragraph 149, which records that:

The VEC treats election day enrolment with minimal publicity so to avoid a flood of enrolments - - -

NETTLE J: It has not worked too well.

MR LIM: Your Honour, the inference is not available, in my submission, that the increased participation on polling day is due to a deliberate disregard or a deliberate taking advantage of the expanded opportunities. Still on the top of orderliness, I wish to refer the Court to section 118(5), one of the impugned provisions of the Act which, of course, suspends the determination of objections made during the suspension period, by way of an aside, when they could be determined.

The point we seek to make is that last-minute enrolments, whether they occur before the beginning of a suspension period or at the time for polling, will always occasion a difficulty about how to deal with objections. So it is no answer, in my submission, for the Commonwealth to say, well, we need to suspend enrolments so that objections can be dealt with.

Finally, your Honour, the Commonwealth has submitted that the facts agreed indicate that additional resources, perhaps of substantial kind, would be needed to maintain a system of voting without the suspension period. I just want to refer the Court to some of the agreed qualifications on the facts about additional resources. They appear in the special case book at page 124 in paragraph 134(c) at the very bottom of the page:

Increased experience and accumulated data about declaration voting patterns would (if such patterns existed) permit more accurate estimates to be made over time, but it is currently unknown whether or to what extent any such patterns would emerge.

The second point, continuing over the page, is that:

to some extent existing resources could be used.

I just want to give two examples about the use of existing resources. The first is that any need for existing resources during the suspension period to

process claims for enrolment and claims for transfer of enrolment will be wholly offset by the need for those resources to be used to process those claims after polling day. They are not additional resources. They are the same resources being expended at a different point in time.

KEANE J: That is not axiomatically true, you know, because if you need to concentrate a number of people into a shorter period that may cost you a lot more than having fewer people doing the work over time afterwards. You cannot just put that to us as a mathematical axiom.

MR LIM: It may not be an equivalence of resources but it is not as if they are wholly additional resources, in my submission. But some resources will, at some point, need to be expended to process those claims. The second example in relation to resources is in the scrutiny of declaration votes. In the special case book at page 110 in table 8, which I took the Court to before, it demonstrates that the Electoral Commission is already scrutinising some 200,000 declaration votes. At that point, the Commonwealth says, well, if you are not correctly enrolled, the vote is not counted. No evidence about the additional resources that would be required at that point to say instead, your vote will be counted. If your Honours please, they are the submissions in reply.

FRENCH CJ: Yes, thank you, Mr Lim.

MR GLEESON: Sorry, your Honours, could I have permission - there is one statutory construction argument that is put which, I think, was new in reply. I just did not want the Court to not have our submission on it.

FRENCH CJ: Yes.

MR GLEESON: Your Honours, it is just that submission that I heard was that the Act operates in such a way because of the section you were referred to, that if you have moved address and you turn up to vote, you were funnelled into a provisional voting route whereby you cannot vote. So it seemed to be that the Act prevents people who have changed addresses voting. The two sections I wanted to take your Honour to were section 93(2) which creates the primary entitlement that if your name is on the roll for a division - let us call that Division - you are:

entitled to vote at elections of Members of the Senate for the State that includes that Division and at elections of Members of the House of Representative for that Division.

Now, reading that section – even if you have moved, if your name is on the roll for that division that is your entitlement to vote, and if that is read together with section – as well as 229 that has been referred to – 231, that

seems to give you the right to receive a ballot paper. You claim to be on the list of voters and you are on the list.

So if you turn up at Division 1, it seems that you are legally entitled to vote and the provision that Mr Lim took you to – 235(1)(b) – seems to be in a different situation. You turn up at Division 2 and your name is not on the address of Division 2 that is because you did not get on in time, you then, at most, under 235(2), have an option to seek to case a provisional vote. Whether that vote can be taken into account will take you into the schedule and it will not because you are not on the roll for that division. So we would maintain on the face of the Act, the second class of people, the transferees, have a legal entitlement to vote in the election.

FRENCH CJ: Yes, thank you. The Court will adjourn briefly to consider what course it should take.

AT 2.58 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.04 PM:

FRENCH CJ: The Court is unanimously of the view that the questions in the special case should be answered as follows:

Question 1: Do one or both of the first and second plaintiffs have standing to seek the relief sought in paragraphs 1, 2, 3 and/or 4 of the further amended application for an order to show cause?

Answer: The second plaintiff has standing and it is otherwise unnecessary to answer the question with respect to the first plaintiff.

Question 2: Are any or all of sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5) and 118(5) of the Commonwealth Electoral Act 1918 (Cth) contrary to sections 7 and 24 of the Constitution and therefore invalid?

Answer: No.

Question 3: If the answer to Question 2 in relation to a section is yes, do sections 152(1)(a) and 155 of the Act have the same or substantially the same operational effect as the impugned provisions or any of them and, if so, are sections 152(1)(a) and 155 invalid and of no effect?

Answer: The question does not arise.

Question 4: If the answer to Question 2 or Question 3 in relation to a section is yes, is that section, or are those sections, severable from the rest of the Act?

Answer: The question does not arise.

Question 5: What, if any, relief should be granted?

Answer: None.

Question 6: Who should pay the costs of the special case?

Answer: The plaintiffs.

The Court will publish its reasons at a subsequent date.

MR MERKEL: Your Honour, just one matter. I think the agreement was that the first plaintiff was to pay the costs.

FRENCH CJ: You confirm that? Yes. The answer then to question 6 will be the first plaintiff.

MR MERKEL: Thank you.

FRENCH CJ: The Court will now adjourn until 10 o’clock.

AT 3.06 PM THE MATTER WAS ADJOURNED