High Court challenge
A last minute challenge to a 2006 Howard government amendment to the Electoral Act is being rushed to a High Court hearing before the election. The amendment closed the rolls one day after the election writs are issued.
Legislation in the eighties allowed for a generous seven day period, ostensibly to make voting easier. But critics said this latitude opened the door to more fraud. Some even alleged that this was its very purpose. They said the Electoral Commission was inundated in the seven days with an unmanageable flood of registrations, many of which would be removed well after they had cast their secret ballots when it was found they were unknown at the place registered. In one celebrated Queensland instance registrations were found to have been made for electors residing on both sides of a very long road one side of which was a waterfront without dwellings.
The High Court case, inspired by the well endowed American style political activist organisation GetUp!, came before Justice Hayne on Thursday, 29 July. His Honour directed that the case be heard by the Full Court this Wednesday 4 August. This should allow a decision to be made in time for the election on 21 August.
Readers will recall the remarkable representation given to GetUp! at the 2020 Summit. The governance panel recorded a 98% vote in favour of a politicians’ republic, and this was adopted by a standing ovation at the plenary session. All of which was reminiscent of the best days of the Supreme Soviet.
The motion for this, if you could dignify with a touch of procedural propriety what was no more than a vague suggestion based on a thought bubble, was “moved” by some GetUp! grandee.
Pity the resolution adopted was legal gibberish, calling on the ending of constitutional links with the UK. These went almost a quarter of a century before the Summit, but none of the celebrities there had noticed.
Although this debacle demonstrated that the 2020 Summit must have been the most gerrymandered “citizens assembly” (to use the mot de jour) in the history of the nation, there wasn’t a peep out of GetUp! complaining about this travesty.
Now it seems that 100,000 people, who couldn’t be bothered to get on to the roll in time for an election which has been endlessly talked about in the media for most of the year, curiously waited until the rolls closed then rushed the AEC to register, and then meticulously did so before the seven days had expired. This is curious behaviour indeed.
Not one of these registrations is of course designed to manipulate the vote in any marginal electorate. Nor was this some stunt dreamed up to hoodwink Their Honours on the High Court.
It would be surprising if the High Court were to find the amendment unconstitutional, because I can’t seem to find the clause in the Constitution which says its alright to close the roll seven days after the writs but not one day after.
But you never know – I thought the reliance of the Howard government’s “big bang” Work Choices legislation on the corporations power would obviously be found to be unconstitutional, after all what has industrial relations legislation to do with the corporations power since there was a perfectly good conciliation and arbitration power that there. But nobody asked me and only Justice Kirby and Justice Callinan thought so. I have no doubt that our Founding Fathers would have agreed with us, if I may put myself in the Their Honours company.
But if the Court had invalidated Work Choices, Peter Van Onselen’s belated wish that the Howard government had been re-elected would have probably been fulfilled. The ACTU’s advertising on that was the most effective political advertising since Gough Whitlam’s It’s Time, and as everyone knows, government advertising is always money – yours – down the drain.
( A word to those who do not subscribe to the Weekend Australian. In the 31 July issue, Dr. Van Onselen, the newspaper’s contributing editor, surprised us all when he wrote that if the past three years have taught us anything “it is that if voters had their time again they would have re-elected the Howard government for a fifth term.”)
You really do have to wonder why GetUp! waited until now to challenge the Howard legislation which has been on the statute books since 2006. The answer is simple. They hoped that the Rudd government would have been able to amend the law for them to revert to the seven days. But as with so many of Mr. Rudd’s projects, this proved too difficult to deliver.
This High Court case is being justified because the two plaintiffs must be among those who registered after the first day following the writs but before the eighth. (There are two plaintiffs because GetUp! would have ensured that each sex be represented. While gerrymandering the Summit is apparently alright you must never engage in anything those with time on their hands could possibly determine is sex discrimination.)
Does this mean the plaintiffs have the ability, knowledge and persistence to bring a High Court case but are unable to comply with a simple one day deadline well publicised by the AEC? Does it mean they could not have registered beforehand? Why did they wait for the second day, but ensure they did it before the eighth?
The answers to all this will not be revealed in cross examination. Instead Their Honours will be provided with a statement of agreed facts which is unlikely to traverse this crucial question.
Originally the plaintiffs were described as petitioning the Court on their own behalf and in a representative capacity, presumably for other 99,998 people the AEC says registered on the second to the seventh day after the writs were issued.
But this representative capacity was abandoned on Justice Hayne’s suggestion after the Electoral Commission indicated, not unreasonably, that it would apply any decision favourable to the two plaintiffs to all of those in the same bateau.
That is the problem. The AEC is not celebrated for its commitment to the early closing of the rolls. Nor is the government – it is not the legislating Howard government but the Gillard government which is defending what the government would prefer to amend.
In his paper to the Samuel Griffith Society on the Work Choices case, Julian Leeser accused the States of running dead.
In this case the question is whether we will see a vigorous defence of the Howard amendment and of the reasons for it. These are a matter of public record and may be found in Hansard.
But will this be mentioned in detail in the statement of agreed facts, the application books, the submissions or in argument?
While there will be an opportunity for the states to intervene, only the Western Australian Attorney, Christian Porter, would be likely to argue strongly for the constitutional validity of the Howard amendment.
So who will present the case for electoral propriety and against electoral fraud? Should an appropriate body, say the HS Chapman Society, seek leave to intervene? Should they at least seek leave to file an amicus curiae (friend of the court ) brief?
If they were to intervene it would be important, as in the Pape case, that it be understood that each party and intervenor, pay its own costs. This I understand was agreed by the Commonwealth in the Pape case after the Chief Justice, Robert French, to his credit, intervened. (Brian Pape was a party not an intervenor, and the rules may well cover this.)
In the unlikely event that this challenge is upheld and upheld without firm conditions, it is likely to open the door to electoral fraud, or rather more fraud than is currently possible.
Common sense will tell you that the present system is open to fraud. Let me illustrate this challenging proposition – that government should involve a good dollop of old fashioned common sense and a good degree of scepticism about political motives – with some examples.
When I recently went to the post office to send a DVD overseas, I had to make a declaration as to the contents and show my driver’s licence. When I last opened a bank account I had to show not only my passport but other documents including my birth certificate.
But when I vote in elections or indeed referendums at anyone of the many polling stations in my electorate I just say my name. The clerk usually then reads aloud my full name and my address, merely seeking my assent.
It is assumed with good sense that without identification there will be fraud or something worse in financial transactions and even in posting materials overseas. But when it comes to exercising that democratic right, voting, it is apparently assumed by those paragons of virtue, the politicians – or some of them- that a minority will not seek to fraudulently engineer the result.
This came to mind when I learned about this curious case which is being rushed through the High Court.
When Richard Mawrey QC was asked recently about this and other practices ostensibly designed to “make voting easier” he replied they what they did was to make made fraud easier. He was speaking at a seminar held at Parliament House Sydney on Thursday 25 February organised by the H S Chapman Society and co-hosted by Australians for Constitutional Monarchy.
He would know. In what he said would disgrace a banana republic, Richard Mawrey QC, sitting as a High Court judge, found six Labour councillors guilty of electoral fraud in the British 2004 Birmingham Council election. This made news not only in the UK, but around the world.
In a splendidly bipartisan approach, he subsequently found that Conservative councillors had engaged in fraud in the Slough Council election.
There was evidence of massive postal vote rigging in the last British general election, according to a report in the Daily Mail on 4 May, 2010 by Sam Greenhill and Tim Shipman. They say that British police have launched 50 criminal inquiries nationwide amid widespread cases of electoral rolls being packed with ‘bogus’ voters.
If we create the opportunity for fraud, common sense will tell you that someone will take that up. Let’s hope the High Court doesn’t fall for this, and if it finds the Constitution says rolls must stay open for seven days, it also finds the Constitution says voting must be honest.