Posted Aug 06 2010, 02:29 AM by Lawyers Weekly
Mallesons Stephen Jaques has successfully acted in a High Court challenge to amendments in the Electoral Act.
In a majority decision, a full Court of the High Court found that amendments made to the Electoral Act by the Howard Government in 2006 were invalid.
In 2006 the Howard Government amended the Act by closing the electoral rolls at 8pm on the day election writs were issued. Previously voters had one week to enroll or change their details with the Electoral Commission.
Today's decision by the High Court means that 100,000 people who were denied the chance to vote by the early closure of the rolls for this year's federal election can now cast a ballot.
"That figure is roughly the size of Bendigo or Ballarat, or almost the size of a federal electorate," Mallesons partner Robert Cooper told Lawyers Weekly. Cooper, who called the result "a great day for the Australian democratic process" is the responsible partner in Melbourne for Mallesons' Human Rights Law Group. He led a team that included an additional 16 solicitors and graduates.
Mallesons were first approached to act on the matter by the Human Rights Law Resource Centre, who in turn were referred by the political activist group GetUp! The actual plaintiffs in the case were Shannen Rowe, an 18 year-old law student from Sydney, and Douglas Thompson. Ron Merkel QC, Kristen Walker, Fiona Forsyth and Neil McAteer of Counsel also assisted.
Cooper said that given the case went from issue to judgment in 11 days, it would rank as one of the quickest High Court cases in recent times.
It is estimated that at the last federal election in 2004 before the now invalid amendments were enacted, 423,000 people enrolled, re-enrolled or updated their details with the Electoral Commission within one week of the election being called.
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High Court upholds voting case
Up to 100,000 more Australians could be allowed to vote in the August 21 election after the High Court ruled parts of the Electoral Act were unconstitutional.
The full bench, in an majority decision on Friday, upheld a challenge to the electoral law changes made by the previous Howard government in 2006.
The court did not publish reasons for its decision, saying a majority had declared the changes invalid.
The changes stipulated that the electoral rolls close to new enrolments at 8pm the same day election writs were issued.
Voters already on the rolls would have had only three extra days to register changes.
Advocacy group GetUp!, which supported the action, said the Australian Electoral Commission estimated 100,000 people could have being prevented from registering for the election at the closing time on July 19.
The commission had indicated it would contact those people to inform them they will be able to vote on polling day, GetUp! Said.
GetUp director Simon Sheikh said it was an historic day and a victory for all who believed in a fair and democratic electoral system.
'Never before in Australian history has a High Court case of this magnitude been thought out and executed in a two-week period,' he told reporters outside the court.
About 20 lawyers, led by Ron Merkel QC, worked around the clock on a pro-bono basis.
The High Court has ordered their costs be covered by the commonwealth.
Success was not a given, but it now had the potential to make a significant impact come polling day, Mr Sheikh said.
The commission has just 15 days to contact those 100,000 people who signed up within the previously acceptable seven-day timeframe.
'Clearly 100,000 Australians who can now exercise their right to vote is an extraordinarily large number,' Mr Sheikh said.
'With marginal seats across the country and an extremely tight election, (this) could have a massive impact on the election.'
He accused the Howard government of 'political manoeuvres' in amending the electoral laws in 2006.
About 1.4 million Australians - or about six per cent of the population - currently are not enrolled to vote, with 70 per cent aged between 18 and 39, according to the commission.
Mr Sheikh said the legal victory is the first step to getting all eligible voters on the electoral roll.
Opposition warns of "rorting" - ABC's take on the story
High Court upholds GetUp! case
Updated Fri Aug 6, 2010 2:40pm AEST
Under the challenged laws, the rolls shut on the day the election writs are issued. (ABC News: David Faraker)
Video: My Vote: O'Connor electorate (ABC News Breakfast) Related Story: Gillard welcomes BER program report Related Story: 'No deal' behind Rudd's campaign resurrection Related Story: Past leaders unleash as campaign heats up Related Link: Special coverage: Australia Votes 2010 Up to 100,000 more Australians could be allowed to vote in the August 21 election after the High Court today ruled that parts of the Electoral Act are unconstitutional.
The advocacy group GetUp! believes tens of thousands of people may have been excluded from the electoral rolls because they missed registration deadlines introduced by the Howard government in 2006.
Before the changes, voters had just seven days after an election was called to enrol to vote. Under the new laws, the rolls shut on the day the election writs were issued.
Two young Australians who found themselves in such a position took their case to the High Court, arguing the changes to shorten enrolment cut-offs were unconstitutional.
In a majority ruling, the full bench of the High Court today declared certain parts of the act invalid.
That will mean anyone who was seven days late with their enrolment will now be able to vote.
The Australian Electoral Commission (AEC) has made plans to ensure those voters will now be included on the rolls for the upcoming federal election.
GetUp! national director Simon Sheikh says it is a historic day.
"Let's remember, there was of course no rational reason why John Howard brought these laws in in the first place," he said.
GetUp's counsel had argued that the houses of parliament would not be chosen by the people because a substantial number of citizens would have been excluded from the vote.
ABC election analyst Antony Green says the decision is likely to favour Labor and the Greens.
"Given all the publicity, I would imagine there would be a huge increase in the number of 18-year-olds on the roll and that would probably assist Labor and Greens," he said.
The AEC says in the coming days it will process enrolment claims that were correctly completed and submitted after 8:00pm on July 19 but before 8:00pm on July 26.
It says it will contact the voters concerned and tell them they are entitled to vote and how to access further assistance.
The lists used at polling booths to mark names off have already been printed and distributed.
The commission says that means any voters who enrolled late will have to cast a "declaration vote" and provide ID such as a driver's licence or passport when voting.
The Opposition says it will be monitoring the situation for any signs of electoral rorting.
Shadow special minister of state Michael Ronaldson says the Howard government introduced the laws on enrolment deadlines to strengthen the electoral roll's integrity.
"While we welcome the additional 100,000 voters who will be participating in this election, we remain concerned this decision leaves the door open to abuse by electoral rorters," he said in a statement.
"Electoral rorters will now be able to use the busy period, after the issue of writs, to make false enrolments and false transfers of enrolments."
Senator Ronaldson said if the Coalition won government it would look into legislating "to ensure the integrity of the electoral roll".