Murphy v Electoral Commissioner [2016] HCA 36: The Constitution and Elections

Today (5 September 2016), the High Court has delivered their delayed reasons in the case of Murphy v Electoral Commissioner [2016] HCA 36. At the conclusion of the hearing on 12 May 2016, in answer to questions posed in a special case, the High Court held that certain provisions of the Commonwealth Electoral Act 1918 (Cth) (the Act) were not invalid for inconsistency with the requirement in ss 7 and 24 of the Constitution that the Parliament be "directly chosen by the people".

Background to the Case

The plaintiffs were an elector in the Division of Wills and an elector who intended to nominate herself as an independent candidate for election to the House of Representatives in the Division of Newcastle. They submitted that the High Court had established in its decisions in Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 and Rowe v Electoral Commissioner (2010) 243 CLR 1; [2010] HCA 46 that the requirement that the Parliament be "directly chosen by the people" meant that any effective burden on this constitutional mandate of popular choice had to be justified by a "substantial reason". In the plaintiffs' submission, the impugned provisions effectively disenfranchised people who had sought to enrol or transfer their enrolment during the suspension periods before recent federal elections (seven days after the issue of writs for an election), a burden which was not justified by a substantial reason.

Constitutional Background

The impugned provisions of the Act prevented a person's claim for enrolment on the Electoral Roll for a Division, or a claim for transfer of enrolment from the Roll of one Division to another Division, from being processed until after the close of the poll for an election if it was received during the "suspension period" from 8pm on the day of the closing of the Rolls for the election, which was seven days after the issue of the writs for the election, to the close of the poll for the election. The impugned provisions also prevented amendments to the Roll from being undertaken by the Electoral Commissioner and the processing of objections to a person's enrolment during the suspension period.

Central to the plaintiffs' contentions was that technological improvements and the availability of resources for extending the period before closure of the rolls closer to polling day means there is no substantive reason to suspend from seven days after the date of the issue of the writs. The defendants contended that this set of arguments relied on unduly narrow interpretations of the scope of Parliament’s power and responsibilities under ss 7 and 24 for establishing an electoral system that gives effect to representative government based on direct choice.

The High Court's Reasons

A majority of the High Court held that the plaintiffs could not establish that the impugned provisions amounted to a burden on the constitutional mandate of popular choice. A suspension period had been part of Australian electoral law since Federation and thus no diminishment of the extent of the realisation of the constitutional mandate of popular choice was at issue in the special case. The High Court unanimously held that even if there was a relevant burden, it was justified by a substantial reason. As part of a coherent electoral system, the impugned provisions advanced the orderly and efficient conduct of elections, ensured that there would be few delays in declaring electoral results, and achieved accuracy and certainty in the lists of electors to be produced for polling day.

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Murphy v Electoral Commissioner [2016] HCA 36 and judgment summary

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