Graeme Orr, ʻThe Voting Rights Ratchetʼ (2011) 22(2) Public Law Review 83-89.
At the end of this paper is an addendum on Specific Implications of Rowe for electoral law.
THE VOTING RIGHTS RATCHET: ROWE v ELECTORAL
COMMISSIONER
THE GENESIS OF VOTING RIGHTS JURISPRUDENCE: FROM ONE-VOTE, ONE-VALUE
TO PRISONER VOTING
In Westminster tradition, the ability to vote was fundamental to parliamentary democracy, yet
simultaneously a privilege regulated by Parliament. While the trend to liberalise the franchise seems,
in retrospect, an inexorable tide, significant forces were arrayed on all sides of what the Victorian era
knew simply as the “reform” debate. Conservatives saw voting less as a right than a responsibility. It
was to be restricted to those responsible for – and given independent status by – landholdings. The
democratic instincts of the Chartists held greater sway in Australia, where women won the vote for
national elections as early as 1902, 16 years before British suffragettes. Yet Australia was no
“paragon of virtue”.1 The Commonwealth began with a racist franchise,2 and only enfranchised most
Indigenous people in 1962. The tension between voting as a republican ideal and an individual
responsibility is neatly captured today in laws compelling both enrolment and attendance at the polls.
Similar to the United States, the Australian Constitution erects no explicit grant of the franchise.3
The closest it came to the matter was in s 41, now neutered by narrow interpretation. The original
intent appears to have been to leave the definition of the national franchise to Parliament (indeed the
1891 draft left the matter, in hyper-federalist United States style, to the separate States).4 The great
issues of the day were including women and excluding non-white races. Trust in parliamentary
sovereignty is reflected in ss 8 and 30, leaving to Parliament the definition of the “qualification of
electors”, a power explicitly limited only by a prohibition against plural voting.5 Nevertheless, in a
series of cases between 1975 and 2006, the High Court crafted a presumption of universal suffrage,
out of the general requirement, in ss 7 and 24 that Parliament be “directly chosen by the people”.6
The cornerstone of these decisions was McKinlay’s case. In retrospect it seems an inauspicious
source: McKinlay and others sought to import United States jurisprudence mandating one-vote, onevalue, but were rebuffed 6-1.7 Barwick CJ scathingly remarked that the Constitution was a site for
literalism, not for “resort[ing] to slogans or to political catch-cries or to vague and imprecise
expressions of political philosophy”.8 Yet, along the way, McTiernan and Jacobs JJ argued that while
“chosen by the people” did not require equal weighting of votes:
the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful
whether ... anything less than this could be described as a choice by the people.9
This insight was embedded in precedent in the prisoner voting case, Roach v Electoral
Commissioner.10 However, the constitutional presumption of a universal franchise appears limited to
adult citizens, and is subject to legislated exceptions that are proportionate or reasonably consistent to
representative government.
1
Brooks A, “A Paragon of Democratic Virtues? The Development of the Commonwealth Franchise” (1993) 12 UTasLR 208.
2
Chesterman J and Philips D, Selective Democracy: Race, Gender and the Australian Vote (Melbourne Publishing Group,
Armadale, 2003).
3
For an overview, see Orr G, The Law of Politics: Elections, Parties and Money in Australia (Federation Press, Annandale,
2010) Ch 3.
4
An approach fortunately ditched in the 1897 draft.
5
That is, wealthier persons having several votes because of multiple residencies or landholding.
6
Critiquing this judicial implication, and lamenting the failure to develop the explicit provision in s 41, see Twomey A, “The
Federal Constitutional Right to Vote in Australia” (2000) 28 Fed LR 125.
7
Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1. Similarly, see McGinty v Western Australia
(1996) 186 CLR 140. For deeper discussion, see Twomey, n 6 at 146-151.
8
Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 17.
9
Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 36. Similarly see McGinty v Western
Australia (1996) 186 CLR 140 at 201 (Toohey J), 221-222 (Gaudron J); Langer v Commonwealth (1996) 186 CLR 302 at 342
(McHugh J).
10
Roach v Electoral Commissioner (2007) 233 CLR 162 (a 4:3 holding that “short-term” prisoners could not be denied the
vote). For discussion of Roach’s implications, see Orr G and Williams G, “The People’s Choice: The Prisoner Franchise and
the Constitutional Protection of Voting Rights in Australia” (2009) 8 Election LJ 123.
THE ROLE OF WRITS AND WRITING OF THE ROLLS: THE GENESIS OF EARLY ROLL
CLOSURE
Electoral writs are customary documents of some antiquity. Modern lawyers are familiar with the writ
of summons in judicial process, but electoral writs are cornerstones of parliamentary practice. They
operated as a command of the monarch, to summons the sheriffs (later Chancery) to ensure the
selection of knights, as part of the process of summonsing the knights so “returned” to attend the new
Parliament.11 Although hardly indispensable, writs remain important formalities.12 They help address
two issues. Since there is a writ for every seat or constituency, it is not possible to petition an election
as a whole. One has to challenge the return of particular members. The other issue is the setting, in
the writ, of the key dates for an election. The most notable dates are the close of nominations, polling
day and the date for closure of the electoral rolls.13
The electoral roll is the humble technology tethering the great but abstract “right to vote” to the
pragmatics of the everyday. Once compiled annually by hand, the “roll” now exists not as a physical
register but as continuously updateable computer files, which are mined to create “certified lists” of
electors, at any point in time, for any electoral event. This administrative task is reinforced by
continuous data-matching and, since 1911, by a legal obligation to maintain enrolment.14 The roll is
unimpeachable and only those on the roll can vote, unless they can establish their name was omitted
in error.15
The practice for most of the 20th century was for Prime Ministers to announce an election but
then delay the issuing of the writ. As Hughes and Costar demonstrated, the average length of time
between election announcement and the writ was 19 days.16 This convention ensured ample time for
electors to learn of the impending election and ensure their enrolments were in order.17 It was broken
by Prime Minister Fraser’s snap double dissolution election of 1983. Electors who had no time to
make the national electoral roll tried to argue their disenfranchisement, relying on the apparent
constitutional guarantee in s 41, but the High Court decided that was a spent provision.18 In response,
the incoming Hawke government legislated to provide a grace period of seven days between the writ
and the close of rolls.
A commonplace struggle in electoral democracy worldwide is between conservatives, fearing
electoral rorting, who argue for tighter procedures and progressives, concerned to avoid
disenfranchisements, who argue for voting to be as accessible as possible. After the Hawke
government reform, some conservatives queried whether the electoral authorities could handle a
deluge of last-minute enrolments. The Australian Electoral Commission responded that while it was
virtually impossible to screen every enrolment, it could handle the rush and an audit had found only
0.02% of last-minute enrolments were erroneous.19 As late as 2003, a multi-party committee with a
conservative majority supported the seven-day grace period.20 However, Coalition policy turned
against the grace period, and on securing a Senate majority, the Howard government overturned it.21
No new enrolments were to be added after 8pm on the day the writ issued, and changes to addresses
closed three days later.
Presaging that move, the Coalition majority on the parliamentary electoral matters’ committee
had asserted in 2005 that early roll closure was important for two reasons. One was that the volume of
enrolments in the grace period limited integrity checks. (Admitting a lack of evidence of fraud, the
committee majority argued that early roll closure could be prophylactic). The other reason was to
11
Riess L (tr Wood-Legh KL), The History of the English Electoral Law in the Middle Ages (Octagon Books, NY, 1973)
pp 17-19.
12
With a fixed election date, Australian Capital Territory elections cope without a writ. Legislation sets the timelines, with any
unpredictable dates being set directly by the executive: Electoral Act 1992 (ACT), Pt 9.
13
See further Orr n 3, pp 92-94.
14
On enrolment and the roll, see Orr, n 3, Ch 4.
15
For example, Commonwealth Electoral Act 1918 (Cth), s 221(3) (conclusiveness of roll), s 235 (provisional voting by those
erroneously omitted from roll).
16
Hughes CA and Costar B, Limiting Democracy: The Erosion of Electoral Rights in Australia (UNSW Press, Sydney, 2006)
p 47. A writ must issue within 10 days of the expiry or dissolution of the House of Representatives: Constitution (Cth), s 32.
17
Under longstanding legislation, roll changes had to be received by the issue of the writ: eg Commonwealth Electoral Act
1902 (Cth), s 64.
18
R v Pearson; Ex parte Sipka (1983) 152 CLR 254. Section 41 says that an adult with “a right to vote” for a State lower house
shall not be “prevented from any law of the Commonwealth from voting” at federal elections.
19
Hughes and Costar, n 16, pp 49-50.
20
Joint Standing Committee on Electoral Matters, The 2001 Federal Election (Parliament of the Commonwealth of Australia,
Canberra, 2003) pp 56-63.
21
Electoral and Referendum (Electoral Integrity and Other Measures) Act 2006 (Cth).
encourage electors to make timely enrolment in line with their legal obligations, presumably by
discouraging a sense that enrolment could be left to the last minute.22
Opponents of the move, such as Hughes and Costar, called it “slamming the door” on valid
enrolments, rather than a move to enhance roll integrity. Excluding tens of thousands of valid lastminute enrolments, to guard against a few undue ones, made the roll decidedly less comprehensive.
Restricting enrolment opportunities also impacts disparately on new enrolees – predominantly young
and new citizens – and those who move residence frequently or live in remote regions. For its part,
the Rudd Labor government had a policy of restoring the grace period but faced conservative
opposition in the Senate. Like prisoner voting, the issue seemed destined to continue as a form of
political ping pong.23
While Prime Minister Gillard could have subverted early roll closure by reverting to the old
convention of announcing the 2010 election well ahead of issuing the writs, she chose a short
campaign. The election was announced on a Saturday, with the writs issuing on the Monday
evening.24 This contrasted, ironically, with Prime Minister Howard. Having legislated for early roll
closure, he allowed several days grace by announcing the 2007 election on a Sunday, with writs to
issue the following Wednesday. The larger point is that whenever the rolls are legislated to close,
Australia’s Constitution still reserves federal election dates to executive whimsy.
THE DECISION IN ROWE V ELECTORAL COMMISSIONER
In Rowe v Electoral Commissioner,25 two plaintiffs challenged early roll closure: Shannon Rowe,
who had turned 18 a month before the writ issued, and Duncan Thompson, who was enrolled but had
moved several months earlier into a different electorate. Neither met the enrolment cut-offs. For
Rowe that meant the prospect of no ballot at all; for Thompson it meant voting for candidates in his
old electorate. By a majority of 4:3, the High Court upheld the plaintiffs’ claim, and hence the law
reverted to the earlier, seven-day grace period.
The timelines for the conduct of the case reveal the High Court in both its most responsive and
leisurely modes. Given the imminence of the election – and the need, if the law were to be
overturned, to give the Australian Electoral Commission time to process newly permissible
enrolments – the case was expedited at break-neck speed. Within days of the plaintiffs’ initial filing, a
directions hearing was concluded. The full hearing occurred within a week, and final orders in the
plaintiffs’ favour were handed down the next day. Yet once that urgency had passed, their Honours
took over four months to craft their reasons, spanning six separate judgments and 163 pages.
The three majority opinions, of French CJ, Gummow and Bell JJ, and Crennan J, can be
summarised as insisting on a rational connection between measures limiting the ability to vote, and a
legitimate governmental aim. This test draws on Roach’s case.26 In French CJ’s judgment, the 2005
parliamentary committee merely asserted an interest in limiting the possibility of fraud and in goading
electors to comply with the obligation of timely rather than last-minute enrolment. Such assertions
“addressed no compelling practical problem or difficulty”.27
Similarly, Gummow and Bell JJ argued that “[a] legislative purpose of preventing ... fraud
‘before it is able to occur’, where there has been no systemic fraud” could not justify an unduly
restrictive cut-off.28 In response to the argument that enrolment was a mere process requirement, and
not a disqualification from the franchise as such, their Honours observed that inability to enrol was
tantamount to denying the franchise,29 and that on a rough estimate at least 100,000 people were in
the plaintiffs’ position of responding to the election but missing the cut-off. As in Roach, the majority
judges made much of what they saw as a practical and ethical consensus that had evolved through
22
Joint Standing Committee on Electoral Matters, The 2004 Federal Election (Parliament of the Commonwealth of Australia,
Canberra, 2005) pp 34-36.
23
Contrast the Labor/Greens’ position with the Coalition Members of Parliament support of early roll closure: Joint Standing
Committee on Electoral Matters, Report on the Conduct of the 2007 Election (Parliament of the Commonwealth of Australia,
Canberra, 2009) pp 49-51, cf pp 325-326.
24
A point averted to in Rowe v Electoral Commissioner (2010) 85 ALJR 213 by Hayne J at [239] and, in a more barbed way,
by Heydon J at [269].
25
Rowe v Electoral Commissioner (2010) 85 ALJR 213.
26
In particular Gleeson CJ’s judgment, see Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [23] (French CJ), [123] and
[161] (Gummow and Bell JJ).
27
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [78].
28
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [167].
29
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [154].
most of the 20th century, in this case to give people a reasonable time to enrol after an election had
been called.
For Hayne J, in dissent, the question required a literalist framework. Does a law closing the rolls
on the evening of the writ yield a Parliament not directly chosen by the people?30 He distinguished
Roach’s case as inapposite, since Roach involved qualifications to be part of “the people”, whereas
Rowe and others like her had not just the right but an obligation to enrol and had “through their own
inaction” failed to do so in time.31 Hayne J acknowledged that the 20th century expansion of the
franchise was an evolutionary and inclusionary development. But in retort to the progressivist method
of the majority, he saw this as evidence of the political dynamism of sovereign, representative
government. He thus repeated his critique from Roach that ratcheting such contested, political
developments into entrenched constitutional norms is a kind of boot-strapping.32
Heydon J, also in the minority, gave a pungent judgment, the essence of which was that the
plaintiffs were “the authors of their own misfortunes”.33 The law obliged them to enrol in a more
timely fashion and they had not done so. Heydon J also hewed to his avowedly originalist approach to
constitutional interpretation, in contrast to the majority’s living tree approach.34 Nonetheless, his
Honour appears resigned to the originalist approach being out of contemporary favour. Indeed, in a
suitably originalist, indeed pompous, metaphor he portrayed originalism as “[s]timulating as much
approbration as the man who asked for a double whisky in the Grand Pump Room at Bath”.35 This
Roddy Meagher-like rhetoric extended to disparaging the plaintiffs making a submission about the
disparate impact of early roll closure without attempting to build any constitutional case out of it.
Such evidence of a “supposed impact of the impugned provisions on Australia’s young adults as well
as its wretched of the earth – its descamisados and other victims … had [no] point other than an
appeal to pathos”.36
For their parts, Crennan J’s and Kiefel J’s judgments were interesting less for the way they
reasoned to their rationes, than in their journeys down interesting rabbit holes. The bulk of Kiefel J’s
judgment was an excursion into the law of proportionality, which culminated in her clearing leeway
for the Parliament and concluding that early roll closure was not without justification.37 Crennan J’s
majority opinion, by contrast, is of direct interest to electoral scholars, for she devoted six pages to a
thesis that 19th century Australian colonial practice represented a triumph of egalitarian political
values over an oligarchic British inheritance. (This thesis reprised a speech she gave to the 2008
Constitutional Law Dinner in Sydney, in which she valorised the Australian Chartists, particularly the
goldfield diggers.)38
This romantic narrative is invoked by Crennan J to inform a progressive, if not radical, reading of
“chosen by the people”. The aim appears to be to uncover pre-Federation roots as supporting the
living tree approach to constitutional rights and guarantees. Her Honour explicitly invoked Issacs J in
the Skin Wool case, on the importance “in interpreting the Australian Constitution, of every
fundamental constitutional doctrine existing and fully recognised at the time the Constitution was
passed”.39 However, as a full-blown originalist like Heydon J would point out, the problem with such
historicism is that the late 19th century Australian settlement of the franchise question only extended
to universal male suffrage. It was class-free, but not necessarily free of gender discrimination and
certainly not free of racial exclusions.40
30
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [182]. The question of whether there was a direct choice by the
people appears to exhaust the electoral law consequences of representative government, according to Hayne J at [195], for “the
Constitution says so little about the way in which representative government is to be implemented” (at [198]).
31
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [187]. See also [218]: it was sufficient that “the people” had the
“legal opportunity” to participate.
32
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [201]-[204], [266].
33
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [287]; see also [272] (arguing that the lack of fixed election dates
was irrelevant because speculation before a Prime Minister calls a poll is usually notorious).
34
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [292]-[302].
35
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [293]. (The Pump Room was a place for drinking fresh spa water.)
36
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [271].
37
In contrast, Kiefel J saw the ban on any prisoner voting as completely lacking justification. See Rowe v Electoral
Commissioner (2010) 85 ALJR 213 at [482].
38
Justice Crennan, “Reflections on Section 7 and 24 of the Constitution” (Speech delivered at the Gilbert & Tobin Centre of
Public Law, Constitutional Law Dinner, February 2008), http://www.hcourt.gov.au/publications/speeches/current/speeches-byjustice-crennan-ac viewed 8 March 2011.
39
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [324], citing Commonwealth v Kreglinger & Fernau Ltd (1926) 37
CLR 393 at 411-412.
40
Brooks n 1; Chesterman and Philips, n 2; cf Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [292]-[311] (Heydon J).
Curiously, the opinions in Rowe draw on almost no comparative law, aside from background
references to 19th century British electoral registration. The fact that New Zealand and Canada permit
enrolment up until and even on election day, respectively, suggests Australian practice is languishing.
The more significant oversight – explicable by the hurried nature of the hearing – was the failure of
the Commonwealth to defend early roll closure by analogy with United States case law. Despite a
strong judicial interest in voting rights, the American Supreme Court has accepted registration cutoffs of 30 and even up to 50 days.41 Admittedly, the two electoral systems are not fully analogous: the
United States has fixed terms and primaries and hence a well-defined electoral “season”, while
Australia compels people to the polls. However the original source of the implied right to vote
federally in the United States, as in Australia, was the constitutional mandate that the House of
Representatives be “chosen … by the people”.42
CONCLUSION: THE RATCHET IS NOT RADICAL
In the 35-year journey from McKinlay to Rowe, it is curious that vote weighting, which was the
stormiest electoral issue in the 1970s and 1980s, particularly in the geographically largest States, has
now been put to bed by a political consensus in favour of one-vote, one-value.43 Yet the franchise, a
first-order liberal issue largely thought resolved by Edwardian times, has recrudesced to centre stage.
The franchise of prisoners and expatriates, and its denial to permanent residents, are all topical
matters. More pragmatically, the state of the rolls has moved to centre stage. Over 1.4 million eligible
citizens were estimated to be absent from the 2010 rolls. The overwhelming cause was not early
closure, but the use of official data revealing address changes to cleanse the rolls, but not to update
them. State legislative reforms moving to a system of “automatic enrolment” are to be implemented
in New South Wales and Victoria. These States and Queensland will also allow new voters
effectively to enrol until polling day by claiming a provisional vote, a vote that is counted once their
bona fides are checked. But these reforms remain controversial with federal conservatives. Given the
ease with which data can be matched electronically, arguments about processing enrolment forms and
timelines born of a paper-era seem increasingly arcane. If automatic enrolment is not in place by the
next federal election, another court challenge is foreseeable. Could it, or other envelope-expanding
claims – say by expatriates to wider voting rights – succeed?
The majority, in Roach and Rowe, was progressive in its methodology and outcome, but only
modestly so. The court is careful to repeat the mantra that it is not its place to judge parliamentary
motivations.44 Hence, even in an area as prone to partisan feather-bedding as electoral law, it shows
little signs of moving to a strict-scrutiny approach. Nor is the search for “rational justification” a
thorough-going one, with the court insisting that the law be as rationally tailored to constitutional
goals as possible. Rather, the majority is identifying values it sees as entrenched by long convention –
such as universal suffrage or a grace period for enrolment – and guards them against legislative backtracking by demanding cogent justifications. So while Heydon J claimed that the logic of Rowe’s
position was that “there should be the widest possible participation in elections [with enrolment] right
up to the moment when the polling booths closed”,45 such a claim would be unprecedented.
The majority’s method, through which constitutional norms are created, but in hindsight, is
known in the American idiom as “ratcheting”. The ratchet offends originalists because it works in
only one direction, and carries the conceit of history as a story of progress without regress. (In
contrast, the past being another country, especially technologically the originalist position can seem
ludicrous when applied to fundamental practicalities such as electoral enrolment).46 The ratchet is not
a radical technique compared to the search for overarching principles in implied rights jurisprudence.
It is more shield than sword; those long excluded from the franchise, like permanent residents, cannot
employ it to gain inclusion.
In one respect, Rowe’s case is quite American. The case was argued by pro bono lawyers
assembled by Get Up!, a non-partisan, left-wing organisation akin to the United States movement
moveon.org, which mobilises sympathisers through on-line petitions and donations. Get Up! also ran
a successful Federal Court claim just prior to the 2010 election, to permit online electoral enrolment.47
41
Burns v Fortson 410 US 686 (1973); Marston v Lewis 410 US 679 (1973). Dunn v Blumstein 405 US 330 at 348 (1972)
found that 30 days was an “ample period of time ... to complete whatever administrative tasks are necessary to prevent fraud”.
42
United States Constitution, § 2.1. Amendments subsequently prohibited a racialised (1870) or gendered (1920) franchise.
43
Orr, n 3, pp 29-30.
44
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [166] (Gummow and Bell JJ).
45
Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [278].
46
Compare Rowe v Electoral Commissioner (2010) 85 ALJR 213 at [292]-[302] (Heydon J) using 19th century British
practices of annual compilation of the roll by revising barristers as a constitutional yardstick.
47
GetUp Ltd v Electoral Commissioner (2010) 189 FCR 165.
Public interest litigation in the law affecting Australian democracy has tended to be ad hoc and
dominated by quixotic litigants-in-person,48 rather than concerted and driven (as in the United States)
by groups such as the Brennan Center for Justice. While incremental rather than radical, the ratchet
does invite further test cases, and in Get Up! there is now a litigational vehicle to drive that process.
Graeme Orr
Associate Professor, Law School, University of Queensland
The author gave pro bono help to the plaintiffs’ legal team in Rowe’s case on comparative United
States law. An earlier version of this comment was delivered to the University of Western Australia
Law School.
Challenges
of
Electoral
Democracy
Workshop
Melbourne
14‐15
July
2011
Panel
1:
The
High
Court
in
Rowe
v
Electoral
Commissioner
and
its
Implications
Specific
Implications
for
Electoral
Law
–
Comments
by
Graeme
Orr
Ramifications
of
Rowe
for
electoral
law
can
be
divided
into
two
categories:
1.
Enrolment
Issues
2.
Electoral
Regulation
more
Broadly
Enrolment
Issues
(a)
National
level.
The
Rowe
case
does
not
constitutionally
mandate
generous
periods
for
enrolment
–
eg
polling
day
registration.
On
the
contrary,
judges
on
both
sides
implied
that
was
not
required.
But
with
such
procedures
being
mooted
and
implemented,
in
a
decade
or
two
it
will
be
highly
arguable
that
such
more
generous
timescales
will
not
be
able
to
be
undone,
short
of
evidence
of
problems
with
workability,
eg
fraud.
(b)
State
electoral
level.
States
should
ensure
their
cut‐off
dates
are
not
unduly
early.
Formally
this
will
only
apply
in
States
with
some
constitutionally
mandated
franchise,
although
this
may
easily
be
implied.
(Eg
Constitution
Act
2001
(Qld)
s
10
says
that
‘the
Legislative
Assembly
is
to
consist
of
directly
elected
members
to
be
elected
by
[eligible]
inhabitants
of
the
State’.)
The
High
Court
in
Rowe
did
not
decree
that
every
State
roll
must
remain
open
for
a
week
from
the
writ.
That
period
was
an
implication
drawn
from
historical
practice
at
Commonwealth
level,
and
the
inability
of
the
Commonwealth
to
justify
earlier
roll
closure.
However
unless
the
States
can
show
cogent
reasons
for
earlier
closure,
a
rule
of
1
week
from
the
writ
will
be
a
safe
harbour.
This
is
particularly
so
in
Queensland
where,
like
the
Commonwealth,
there
is
no
fixing
of
parliamentary
terms.
48
See discussion in Gageler S, “The Practice of Disputed Returns for Commonwealth Elections” in Orr G, Mercurio B and
Williams G (eds), Realising Democracy: Electoral Law in Australia (Federation Press, Annandale, 2003) Ch 14.
(c)
Local
government
level.
Ramifications
may
arise
where
State/Territory
constitutions
mandate
local
government
elections
(since
it
is
an
easy
step
to
then
imply
a
broad
and
accessible
franchise).
Eg
Constitution
Act
2001
(Qld)
s
71(1)
provides
that
‘a
Local
Government
is
an
elected
body’.
But
again,
nothing
in
Rowe
formally
decrees
that
local
government
rolls
be
open
for
some
period
after
each
election
is
called.
Indeed
the
reasoning
in
Rowe
may
be
distinguished
in
that,
unlike
Commonwealth
election
dates,
local
election
dates
are
typically
set
well
in
advance
and
by
legislation:
eg
Local
Government
Act
2009
(Qld)
s
269
sets
the
‘last
Saturday
in
March’
every
four
years.
But
in
the
US,
despite
fixed
election
dates,
the
Supreme
Court
has
essentially
mandated
hat
registration
cannot
close
more
than
40
days
before
polling
day.
Some
very
short
local
roll
closing
dates
may
therefore
be
prima
facie
challengeable:
eg
Qld
s
277
requires
rolls
to
close
about
2
months
before
local
polls.
In
response
the
Queensland
government
could
argue
that
since
returning
officers
are
the
council
CEOs,
rather
than
full‐time
electoral
officials,
it
is
reasonable
to
give
them
more
time.
Election
Regulation
more
Broadly
(a)
Nomination
cut‐offs.
An
obvious
cognate
to
enrolment
cut‐offs
are
nomination
cut‐
offs.
After
all,
candidates
are
as
crucial
to
the
Constitutional
mandate
of
‘directly
chosen’
as
electors.
The
Commonwealth
Electoral
Act
1918
(Cth)
requires
a
minimum
10
days
from
the
writ
for
candidates
to
nominate.
Following
the
Rowe
approach,
significantly
reducing
that
period
without
cogent
evidence
of
a
need
to
do
so
will
be
constitutionally
suspect.
(b)
The
Franchise.
The
‘vibe’
of
Roach
(the
Prisoner
Voting
case)
and
Rowe,
read
together,
is
that
the
Court
will
erect
a
shield
to
prevent
backtracking
on
fundamental
electoral
rights
and
freedoms
if
(a)
there
is
a
history
of
a
long
legal
or
social
consensus
around
those
rights
and
freedoms
and
(b)
there
is
a
lack
of
a
strong
justification
to
reduce
the
benchmark.
This
‘ratchet’
approach
however
is
not
a
constitutional
sword.
For
instance
the
Court
would
not
extend
the
constitutional
idea
of
‘the
people’
to
enfranchise
non‐citizen
permanent
residents.
It
might,
at
least
given
a
decade
or
so,
come
to
see
eligible
overseas
electors
as
a
prima
facie
protected
category.
That
is,
a
future
parliament
would
be
required
to
give
cogent
justifications
to
pull
back
from
the
6
year
rule
(enabling
ex‐pats
intending
to
return
within
6
years
to
remain
on
the
roll).
That
is
even
more
likely
if
the
social
recognition
of
the
diaspora
and
globalising
trends
continue.
Professor
Costar
has
even
suggested
that
Darryl
Melham’s
desire
to
disenfranchise
the
privileged
British
subject
non‐citizens
could
be
constitutionally
suspect
under
the
High
Court’s
approach.
I
doubt
that.
Even
Chief
Justice
Gleeson
(a
majority
voice
in
Roach)
volunteered
that
it
was
within
Parliament's
power
to
use
citizenship
as
a
symbolic
boundary
around
the
franchise.
(c)
And
beyond
…
Political
Finance?
Methodological
conservatives
loathe
the
'loosey‐
goosey'
incursion
of
the
High
Court
into
the
old
principle
of
pure
parliamentary
sovereignty,
even
in
an
area
as
fundamental
as
electoral
law.
But
judicial
'activism'
is
not
a
one‐way,
progressive
force
–
as
the
Roberts'
Supreme
Court
in
the
US
is
today
making
abundantly
clear
(see
the
Citizens
United
and
Arizona
Free
Enterprise
Club
cases).
What
is
good
for
the
progressive
goose
can
be
good
for
the
ideologically
conservative
gander.
Rowe
(and
Roach)
fit
into
the
implied
rights
agenda,
begun
in
1992
in
the
striking
down
of
the
UK
style
egalitarian
ban
on
paid
electoral
broadcasts
(ACTV
case).
Conservatives
will
search
in
Rowe
and
Roach
to
buttress
their
arguments
against
expenditure
and
donation
limits.
Freedom
of
political
donation,
for
instance,
has
been
part
of
the
Australian
heritage
for
110
years
until
last
year's
NSW
reforms.
But
Rowe
and
Roach
deal
with
the
universal
franchise,
which
is
directly
drawn
from
the
Constitutional
terms
'chosen'
by
the
'people'.
Political
speech
and
fund‐raising
are
a
step
removed:
a
freedom
of
political
communication
is
indirectly
implied
from
those
Constitutional
terms.
The
High
Court,
I
predict,
will
be
wary
of
finding
that
political
finance
restrictions
are
unjustifiable.