It is 2021 and the Australian Federal Party holds a two seat majority in the House of Representatives and succeeds in enacting a number of amendments to the Commonwealth Electoral Act 1918 (Cth) in the lead-up to the 2022 Federal election. The Prime Minister, Heidi Hyacinth, announces that:
these reforms are vital and are designed, amidst concerns about increasing voter fraud, to improve the integrity and accuracy of compulsory voting in Australia. Not only will the reforms improve the accuracy of the electoral roll (including removing people who are deceased or are no longer eligible to vote) but they will also ensure that federal electorates are drawn up based on accurate enrolment data. This voting identification card will change the face of voting in this country. We will trial it for the 2022 election and then re-assess its further use.
The amendments are included in the Vote-For-Australia Photo Identification Card Act 2021 (Cth) (the Act) for which the relevant provisions are set out below.
Section 18:
a) To be included on the Australian electoral roll every person must obtain a Vote-For-Australia Photo Identification card.
b) People previously on the Australian electoral roll who do not obtain a Vote-For-Australia Photo Identification card will be removed from the Australian electoral roll.
Section 19:
Voters must show their Vote-For-Australia Photo Identification card or they will be prohibited from:
a) voting at a polling booth;
b) voting at a pre-poll early voting centre; or
c) collecting a postal vote application form from an Australian Electoral Commission office, Australian Consulate or Australia Post branch.
Note: Postal vote application forms will no longer be accessible online.
Section 20:
Failing to show or failing to obtain a Vote-For-Australia Photo Identification card is not a valid excuse for failing to vote and will be subject to a financial penalty as prescribed by the Vote-For-Australia Photo Identification Card Regulations 2021 (Cth).
Section 21:
A Vote-For-Australia Photo Identification card:
a) can be obtained only from an Australian Electoral Commission office, Australian Consulate or Australia Post branch;
b) is valid for 5 years;
c) will require 100 points of photo identification before it is issued;
d) will require a photo to be taken at an Australian Electoral Commission office, Australian Consulate or Australia Post branch and the photo will be stored on an Australian Electoral Commission electronic Vote-For-Australia Photo Identification card database;
e) will require payment of a $20 administration fee (or $5 for concession card holders); and
f) will be accompanied by the Australian Electoral Commission ‘How to Vote at a Federal Election - Reducing Voting Errors and Misunderstandings’ Guide.
You are acting as Junior Counsel for the Plaintiff, Hilary Handsmith, who is challenging the constitutionality of the Act in the High Court of Australia. The Defendant, the Commonwealth, will assert that the Act is constitutionally valid. Hilary Handsmith wants to argue that the Act contravenes the ‘directly chosen by the people’ requirement in ss 7 and 24 of the Commonwealth Constitution. She lives on a small pension and her home is over 400 km from the nearest Australian Electoral Commission office, Australian Consulate or Australia Post branch and she is concerned about the impact of the changes on her ability to vote at the 2022 Federal election whether in person or by postal vote.
Assume that the Joint Standing Committee for Electoral Matters found in its report on the 2019 federal election that with 16,473,000 electors (and compared with previous federal elections) cases of electoral fraud by voter impersonation or the use of a fictional name and address had tripled (from 5,000 instances to 15,000 instances), cases of multiple voting had doubled (from 15,000 instances to 30,000 instances) and detected electoral roll errors had decreased by 2% (from 3,590 instances to 3,518). Further, assume that the Australian Electoral Commission’s preliminary estimate is that s 18 of the Act is likely to adversely impact 46,000 otherwise eligible voters.
Hannah Harrow, Senior Counsel, has asked you to do a preliminary draft of the Plaintiff’s written argument in relation to the compliance of the Act with ss 7 and 24 of the Commonwealth Constitution. These do not need to comply with the formal High Court submission requirements, which will be attended to by Senior Counsel. Senior Counsel has, however, asked that your submissions be succinct, provide relevant case authorities and be set out in numbered paragraphs. Senior Council has provided some submission samples in Attachments ‘A’, ‘B’ and ‘C’ to assist you with the format of your draft submissions, and directs your attention to the different styles of presentation that you can adopt in setting out your argument (see Part VI in each). Senior Counsel has also recommended you refer to Corbett-Jarvis and Grigg, Effective Legal Writing – A Practical Guide (Lexis Nexis Butterworths, 2014) 166-173 (see Unit Readings on LMS) in preparing your submissions. Senior Counsel has advised that you are not required to consider other issues including how the Act relates to provisions in the Commonwealth Electoral Act 1918 (Cth) or to discuss the Plaintiff’s standing to bring the action as she will be addressing these aspects in her final submissions.