Rowe v Electoral Commissioner [2010] HCA 46

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

SHANNEN ALYCE ROWE & ANOR PLAINTIFFS

AND

ELECTORAL COMMISSIONER & ANOR DEFENDANTS

Rowe v Electoral Commissioner [2010] HCA 46

Date of Order: 6 August 2010

Date of Publication of Reasons and Further Order: 15 December 2010

M101/2010

ORDER

1. Declare that 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.

2. The second defendant to pay the plaintiffs' costs of the Further Amended Application for an Order to Show Cause.

FURTHER ORDER

3. Dismiss so much of the plaintiffs' application as remained after the order of this Court made on 6 August 2010.

Representation

R Merkel QC with K L Walker, F K Forsyth and N McAteer for the plaintiffs (instructed by Mallesons Stephen Jaques)

G T Johnson for the first defendant (instructed by Australian Government Solicitor)

S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett and D F O'Leary for the second defendant (instructed by Australian Government Solicitor)

R M Mitchell SC with C S Bydder intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor's Office)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Rowe v Electoral Commissioner

Constitutional law (Cth) – Legislative power – Franchise – Constitutional limitations upon power of Parliament to regulate exercise of entitlement to enrol to vote – Date for close of Electoral Rolls in Commonwealth Electoral Act 1918 (Cth) amended – Amendments precluded consideration until after election of claims for enrolment received after 8 pm on date of writs and of claims for transfer of enrolment received after 8 pm on third working day after date of writs – Whether denial of enrolment effected by amendments contravened constitutional requirement that representatives be "directly chosen by the people" – Whether amendments operated as disqualification from entitlement to vote and, if so, whether disqualification for substantial reason – Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162.