Rowe v Electoral Commissioner [2010] HCA 46

Rowe v Electoral Commissioner [2010] HCA 46

The removed seven-day grace period for enrolment and transfer of enrolment operated to exclude a significant number of otherwise qualified electors from the franchise, contrary to the constitutional command that Houses be 'directly chosen by the people'. Such an exclusion was not justified by a substantial reason. The adverse effect on the franchise was disproportionate to the procedural or administrative benefits cited by the government, particularly in the absence of compelling evidence of administrative incapacity or roll fraud. Therefore, the amendments to the Electoral Act effected by the relevant items were invalid.

Parties
Plaintiff: Shannen Alyce Rowe; Plaintiff: Douglas Thompson; First Defendant: Electoral Commissioner; Second Defendant: Commonwealth of Australia; Intervener: Attorney-General for the State of Western Australia
Jurisdiction
Australia
Judgment Date
15 December 2010
Procedural Posture
Constitutional Law Challenge / Final Judgment – Orders and Published Reasons
Outcome
Certain amendments to the Electoral Act are invalid; costs awarded to plaintiffs for the Further Amended Application; remainder of application dismissed.
Legal Topics
Legislative Power, Franchise and Voting Rights, Electoral Roll, Constitutional Limitation, Proportionality, Representative Government
Constitutional Law Legislative Power Franchise and Voting Rights Electoral Roll Constitutional Limitation Proportionality Representative Government

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Parties

Shannen Alyce Rowe

Plaintiff

Douglas Thompson

Plaintiff

Electoral Commissioner

First Defendant

Commonwealth of Australia

Second Defendant

Attorney-General for the State of Western Australia

Intervener

Procedural Posture

Constitutional Law Challenge / Final Judgment – Orders and Published Reasons

Legal Issues

  1. 1 Whether amendments to the Electoral Act closing the Electoral Rolls earlier are invalid as contrary to ss 7 and 24 of the Constitution
  2. 2 Whether removal of the 7-day grace period for enrolment/transfer of enrolment violates the constitutional requirement that Houses be 'directly chosen by the people'
  3. 3 Whether the disenfranchisement operated by these amendments is for a 'substantial reason' or disproportionate to the end sought

Ratio Decidendi

The removed seven-day grace period for enrolment and transfer of enrolment operated to exclude a significant number of otherwise qualified electors from the franchise, contrary to the constitutional command that Houses be 'directly chosen by the people'. Such an exclusion was not justified by a substantial reason. The adverse effect on the franchise was disproportionate to the procedural or administrative benefits cited by the government, particularly in the absence of compelling evidence of administrative incapacity or roll fraud. Therefore, the amendments to the Electoral Act effected by the relevant items were invalid.

Court Disposition

Certain amendments to the Electoral Act are invalid; costs awarded to plaintiffs for the Further Amended Application; remainder of application dismissed.

Orders

  • Declare Items 20, 24, 28, 41, 42, 43, 44, 45 and 52 of Sched 1 to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) are invalid.
  • Second defendant to pay plaintiffs' costs of the Further Amended Application for an Order to Show Cause.