Sunday, July 18, 2010

Register Online to Vote Should be Legal

GetUp created an online "Enrole to Vote" web service. However, media reports indicate that the Australian Electoral Commission is discouraging Australian from registering on-line to vote. This is unfortunate and ACE should be carrying out its duty to help Australian enrol, rather than discouraging them. If hundreds of thousands of Australians are prevented from voting as a result, the election may be declared invalid by the courts and have to be rerun.

The Commonwealth Electoral; Act 1918 Section 98AA requires an applicant for enrolment to:

(a) provide documentary evidence of his or her name by providing:

(i) in the case of an applicant for enrolment under section 94A or 95--his or her driver's licence number or Australian passport number; or

(ii) in any other case--his or her driver's licence number ...

This could easily be done on-line, but Section 336 states:

(1) Every electoral paper which by this Act or the regulations has to be signed by any person shall be signed by that person with his or her personal signature.

(2) Where a person who is unable to sign his or her name in writing makes a mark as his or her signature to an electoral paper, the mark shall be deemed to be his or her personal signature, if it is identifiable as such, and is made in the presence of a witness who signs the electoral paper as such witness:

Provided that nothing in this section shall authorize any person to sign any electoral paper by a mark or otherwise than in his or her own handwriting in cases where the Act or the regulations require that the electoral paper be signed in the persons' own handwriting. ...

This would suggest the Act requires the signature to be a "personal signature", that is an autograph (the person's name written in their own hand). It also seems to say that this has to be done on paper and so would preclude the use of an electronic document.

However, Section 170 allows for nominations for candidates to be in the form of a "facsimile" of a paper form, where Section 4 Interpretation defines this to be:

"facsimile" , in relation to a nomination paper, means:

(a) a copy of a nomination paper that has been reproduced by facsimile telegraphy or any other means; or

(b) a copy of a copy referred to in paragraph (a).

Clearly this would allow a candidate to nominate using an electronic document sent via the Internet. There would seem no good reason this means could not also be used for a voter to register.

Australian courts now accept that electronic documents are real, legal documents. The High Court of Australia considered the issue in 2003:
  1. ... The ordinary dictionary meaning of "document" is a printed or written paper containing information. ... No violence is done to the object or language of s 418(3) by holding that "document" includes information that is stored in a computer or a fax machine and which can be printed out by pressing one or more keys or buttons. No reason appears for thinking that Parliament intended to distinguish between information stored on paper and information stored in the electronic impulses of a computer that can be printed on paper by pressing a key or keys on the computer's keyboard. ...

    From: "Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal", 8 August 2002, High Court of Australia,

It seems unlikely the courts would deny Australian citizens the right to vote, simply because they sent their enrolment form via the Internet.

Also the deadline for enrolling to vote appears unreasonable and may therefore be invalid. The AEC has set a deadline to enrol to vote of 8pm Monday, 19 July 2010. However, the Close of nominations for candidates is ten days later:12 noon Thursday, 29 July 2010.

In the days when the rolls were prepared manually and had to be typeset by hand, printed well in advance and dispatched, this period made sense. However, the rolls are now prepared by computer, electronically typeset and laser printed. There is therefore no reason why the deadline for enrolment need be any shorter than that for candidates. As a result it seems likely that the courts would hold this restriction on citizens right to vote to be invalid.


Deborah Veness said...

Hi Tom

This morning I heard an AEC rep on Triple 6 say that they are accepting faxed or scanned copies of the enrolment form, so I guess they are doing the best they can with the legislation still in place.


James Dellow said...

I'm with you Tom... Enrolling to vote online: What happens when Gov 2.0 runs into indifference.