Getup Ltd v Electoral Commissioner

REASONS FOR JUDGMENT 1 This case concerns the Federal election to be held on Saturday next, 21 August 2010. That election was announced by the Prime Minister on Saturday 17 July 2010. On the Monday following that announcement the second applicant, Ms Trevitt, who had not previously been enrolled as a voter applied to the Electoral Commissioner ("the Commissioner") to be enrolled in the electoral division of Grayndler. The application was prepared using a laptop with access to the internet and with a device known as a digital pen which can be used on the laptop's trackpad. 2 The laptop, which was provided to Ms Trevitt by an officer of the first applicant, Getup Ltd ("Getup"), was used by Ms Trevitt to access the world wide web and, in particular, to access a site maintained by Getup: ozenrol.com.au. At the time Ms Trevitt accessed this site it was no longer publicly accessible although it had been at an earlier time. This shutting off of the site from the public followed after the Commissioner raised with Getup his concerns about the effect that a finding that the electronic signature process was not valid might have upon the smooth and efficient operation of the election process. 3 The site elicited from Ms Trevitt the information which was necessary to complete an application for enrolment. One integer of information which was required was Ms Trevitt's address which, through reasons presently of little moment, she entered in error. The site provided a facility called the signature tool, by which users of the site could apply their signature electronically using a digital pen, their finger or a mouse. The digital pen or the finger could be applied to the trackpad of a laptop (or to an externally supplied trackpad). The signature tool permitted the user to select the thickness of the strokes on a scale of 0-100. Because the position of the pen on the trackpad (and also the mouse) is determined intermittently, although very frequently, the ensuing signature may appear slightly jaggered. The signature tool contains a smoothing application which addresses this issue. The user may erase the signature in part or in whole and may perform that process as many times as is necessary. The signature tool also allows the user to modify the signature with considerable precision. The signature may be broken down into points of separation by the user who may select small dots or control points. The resulting segments between the control points may be shifted and their angles adjusted. M. Francois Chemillier, an online campaigner with Getup, gave evidence that the signature tool could be used by a user to "modify and reconstruct their signature with great precision". I accept this evidence. 4 Ms Trevitt then used a digital pen to create her signature. An appropriate witness, in the form of a banker from Macquarie Bank, was on hand to witness Ms Trevitt's signature and he too used the signature tool to perform that act of witness. All of this took place, perhaps unexpectedly, in the foyer of the Westin Hotel in Sydney. 5 Having completed the process Ms Trevitt pressed the "proceed" button. The consequence of that action was that the ozenrol site then generated a claim form for enrolment in accordance with the statutory requirements, completed the relevant details, applied the signature generated using the signature tool and then generated a document in PDF format. That PDF document was then emailed to a third party provider UTBox which provides an online fax service. It then faxed the enrolment form to the relevant office of the Commissioner. 6 Users may save to their own desktop or print-off a copy of the enrolment claim form thus generated, although the copy will not have the signature on it. This permits persons using the site to apply their signature manually if they wish. None of the data generated in the course of the user's session is permanently saved and effectively it expires at the end of the user's session or, in any event, within 24 minutes. Ms Trevitt saved a copy of her form in PDF to the desktop of the laptop. The Commissioner received Ms Trevitt's claim form on 19 July 2010. Subsequently, probably on 28 July 2010, he rejected Ms Trevitt's claim for enrolment on the basis that the address stated in the form was incorrect (this having been brought to his attention by her solicitors on 21 July 2010). On 22 July 2010, Ms Trevitt again accessed the ozenrol site and completed, this time correctly, a transfer of enrolment form stating her correct address. No point has been taken by the Commissioner that there was no enrolment for Ms Trevitt to transfer, the first claim having been rejected. The Commissioner very sensibly, if I may say, appears to have treated Ms Trevitt's second application as a substantive application for enrolment rather than an application for transfer. On the occasion of the second application Ms Trevitt's signature was this time witnessed by her mother, Dr Trevitt, and she too used the signature tool for that purpose. 7 At that time, the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") purported to require the Commissioner not to process Ms Trevitt's application until after the close of polling on 21 August 2010 since it had been lodged after 8.00pm on the day upon which the writs had been issued. However, on Friday 6 August 2010 the High Court struck down that requirement and, in the form the Act then took, the Commissioner was obliged to process Ms Trevitt's claim. On the same day, last Friday, a delegate of the Electoral Commissioner rejected Ms Trevitt's second claim of 22 July 2010. 8 His reasons for taking that course were communicated to Ms Trevitt's solicitors on Monday 9 August 2010. They were, putting it in a summary way, that the electronic signature on the claim form was not sufficient. No other reason was put forward then, or to me, to suggest that Ms Trevitt was not otherwise entitled to be enrolled in the electoral division of Grayndler. 9 There is no doubt that the Act required Ms Trevitt to sign the claim form. Section 98(2) of the Electoral Act required that a claim form "must be signed by the claimant" and s 101(1) required a person who was entitled to be enrolled in a sub-division immediately to "fill in and sign a claim form". Section 336 requires that any signature on "electoral paper" (which includes a claim form) be signed by a person with "his or her personal signature". That requirement means only that the act of writing the signature must be done by the signer and cannot be done by direction: cf. Goodman v J Eban [1954] 1 QBD 550 at 557 per Lord Evershed MR. 10 In another context, minds might perhaps legitimately differ as to whether the word "sign" in the Electoral Act encompassed digital signatures such as Ms Trevitt's. However, the present context includes the Electronic Transactions Act 1999 (Cth). That Act applies to "transactions" a term defined in s 6 to include "a transaction of a non-commercial nature". The Act sets up a general rule about the validity of transactions arising from electronic communication. It is in s 8 which is as follows: For the purposes of a law of the Commonwealth, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communication. 11 As might naturally be expected specific provision is made for the topic of signatures. The relevant part is contained in s 10(1)(a) and (b) which are as follows: (1) If, under a law of the Commonwealth, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if: (a) in all cases - a method is used to identify the person and to indicate the person's approval of the information communicated; and (b) in all cases - having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated; 12 There was no doubt that in this case a "method" was used in terms of s 10(1)(a). It was Ms Trevitt's method of using the signature tool and submitting the claim form to the Commissioner via the ozenrol site. The principal debate in this case concerns s 10(1)(b) and its requirement that, in all the relevant circumstances the method be as reliable as is appropriate for the purposes for which the information was communicated. 13 Mr Renwick, who appeared for the Commissioner, submitted that s 10(1)(b) was to be construed as requiring the Commissioner to form an opinion about reliability for purpose and the primary decision making function was one for him. This did not mean, and it was not submitted, that the Court had no power to review the Commissioner's opinion but it did mean that the grounds of review were somewhat more circumscribed. Reference was made in the course of argument to the kinds of statutory powers under discussion in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 653-654 [136]-[137] per Gummow J. 14 So viewed, it was submitted that the Court should give some deference to the views of the Commissioner since, it was not to be doubted, he had considerable expertise in the operation of the enrolment processes. One might well be minded to accept such a proposition, but, the statute requires, and authority confirms, that one must begin with the text of s 10(1) itself and here, I confess, Mr Renwick's argument encounters difficulties. The provision does not mention anyone forming an opinion. In particular, because s 10(1)(b) is pitched at a very high level of generality it understandably eschews identifying any of the parties to the communication at all. Even assuming the provision should be read as requiring someone to hold an opinion it is silent as to whether it is to be held by the sender or the recipient or both. Further, as Mr Kirk, who appeared with Ms Rao for the applicants, pointed out, the breadth of the requirement that the issue be considered in light of all of the relevant circumstances bespoke the possibility that not all of the circumstances might be known to the participants to the communication. Such a view of the provision counted against it being read as requiring the formation of an opinion by one or other of the persons involved in its application. 15 I do not see a way around those concerns. To accede to the notion that s 10(1)(b) required the Commissioner to form an opinion would involve, so it seems to me, an intolerably strained construction of its plain words. Further, it would be a construction which necessarily identified the recipient as the person whose opinion mattered. That reading of s 10(1)(b) might have very serious consequences in a range of cases yet to come and about which nothing can be known. In those circumstances, I do not read s 10(1)(b) in a manner for which the Commissioner contends. This has the consequence that the provision sets a standard which, in this instance, is to be ascertained and applied by the Court. 16 It follows that the delegate's reasons for arriving at the conclusion that the requirements of s 10(1)(b) had not been met are of no direct legal significance. Rather, that is a question for this Court. Nevertheless, the delegate's decision does touch upon concerns which the Commissioner appears to have had about the process. And, it is legitimate in those circumstances, to take cognizance of those concerns, if only to assess them. In his reasons for the decision the delegate was impressed by two matters. The first was that Ms Trevitt's signatures and that of her mother, Dr Trevitt, consisted of, as he put it "broken lines (or dots and dashes)". For privacy reasons, I will not include Dr or Ms Trevitt's signature in these reasons for judgment. I will say this, however, having examined them with some care they can best be described as resembling a signature which has been faxed; that is, it is plainly a signature subject to a noticeable but not serious degree of pixilation. The Commissioner's expressed concern was that a future need might arise requiring him to compare a signature on a postal vote, for example, with the signature on the claim form and that the pixilated or jagged nature of the signature might reasonably be supposed to interfere, or degrade in some way, that process of comparison. 17 I do not think that this concern can take the Commissioner very far. Ms Trevitt and Getup pointed to evidence that the Commissioner was willing to accept, and frequently did accept, enrolment claim forms by facsimile and by scanned PDF of JPEG files sent via email. Further, his own documentation providing instructions on how to undertake that process suggested that claimants deploying it should use the lowest resolution at 100 DPI (dots per inch). In that circumstance, I cannot accept that the slightly pixilated nature of Ms Trevitt's signature rendered it unreliable for the Commissioner's purposes, not at least while he continues to accept faxed or emailed claim forms. 18 The second matter which troubled the delegate requires a slight digression. When this case was first commenced Ms Trevitt and Getup were accompanied by two other applicants, Mr Cashman Pickles and Mr Steven Hind. They also submitted claim forms to the Commissioner using the ozenrol site. They are, however, no longer pursuing their claims in this Court. As it happens, the Commissioner was in the possession of earlier enrolment forms submitted by them and, so it would appear, the signatures submitted using the ozenrol site were different to those on the earlier forms. 19 It might readily be accepted that this showed that Mr Cashman Pickles and Mr Hind had signatures which were prone, at least some of the time, to variation. However, I do not see what this had to do with the ozenrol website. Had these two gentlemen submitted their claims manually the same difficulty would, no doubt, have arisen. Unless it be suggested that the differences in the signatures arose by reason of the application of the signature tool then I do not see, with respect, that this matter can be material. 20 During the course of the hearing Mr Renwick placed considerable emphasis on M. Chemillier's evidence that the signature generated by the signature tool could be very precisely and repeatedly varied. This, of course, was not referred to by the delegate as a concern but, in many ways, it is I think the Commissioner's best point. The risk at hand is the risk of fraud; more specifically, the risk that a claimant's signature may fraudulently be affixed to a claim form. I accept that the signature tool would permit a signature to be forged. The question at hand, however, is the assessment of the magnitude and significance of that risk. And here some comparison with other methods of completing the claim form are plainly justified. One starts, of course, with the proposition that any signature may be forged. It is true that handwritten forgeries are easier to detect because of differences of pressure points on the page, the thickness of the stroke and so on. However, the force of that point - which I would otherwise readily have acceded to - is much diminished in the present context when one knows that the Commissioner does in fact accept faxed and emailed claim forms. 21 The real point is the ease with which the signature tool allows careful manipulation of a signature. But again, accepting that to be so, one needs to pay proper attention to the fact that the Commissioner will accept a claim form in the form of a JPEG file and that such a file is easily manipulated or photoshopped. In order for this ability to vary a signature to provide a persuasive basis for rejecting the signature tool there would need to be some principled basis for distinguishing the alterable nature of a JPEG file (which the Commissioner will accept) from the alterable nature of the signature tool (which the Commissioner will not). I am unable, as presently advised, to discern such a difference. 22 Granted then that faxing and emailing a JPEG files satisfies, for the Commissioner's purposes, the requirements of s 10(1)(b) it must follow, and I find, that the signature tool and the ozenrol site likewise satisfy that provision. 23 It follows that Ms Trevitt's claim form of 22 July 2010 was signed by her as required both by s 98(2)(b) and 102(1) of the Electoral Act. What was the Commissioner obliged to do? His duties were prescribed by s 102(1). It provides: Subject to subsections (4) and (4AA), where, pursuant to section 101, the Electoral Commissioner receives a claim for enrolment or transfer of enrolment, the Electoral Commissioner must: (a) note on the claim the date of its receipt; (b) if the claim is in order and the Electoral Commissioner is satisfied that the claimant is entitled, in respect of residence at an address, to be enrolled for a Subdivision, without delay: (i) enter on the Roll for the Subdivision the name of the claimant and the other particulars required by section 83; and (ii) notify the claimant in writing that he or she has been enrolled for the Subdivision; and (iii) in the case of a claim for transfer of an enrolment from the Roll for another Subdivision - delete the name of the claimant from the Roll for that other Subdivision; and (ba) if the claim is in order but the Electoral Commissioner is satisfied that the clamant is already properly enrolled in respect of residence at the address in the Subdivision for which he or she is entitled to be enrolled - notify the claimant, in writing, that he or she has been enrolled for that Subdivision; and (c) if the claim is not in order or the Electoral Commissioner is not satisfied that the claimant is entitled, in respect of residence at an address, to be enrolled for a Subdivision - notify the claimant in writing that the claim has been rejected. 24 The Commissioner submitted that he had acted under s 102(1)(c) and that the claim was "not in order". He submitted that the Electoral Act left him with a discretion as to whether a claim was in order and that the provision was to be read as requiring the formation by him of an opinion and that the relevant review principles were those already referred to in Eshetu (supra). 25 I do not think that this question matters. The short of the matter is that, as a matter of law, Ms Trevitt signed her claim form. No other reason was advanced by the Commissioner as to why her claim was not in order. In those circumstances there are really only two possibilities. Either the expression "the claim is in order" sets a legal standard which, on my conclusion, has been satisfied or the Commissioner has formed the opinion that the claim was not in order on an erroneous understanding that the claim form had not been signed. Even accepting the Eshetu standards it is apparent that such a legal error in the formation of an opinion would vitiate it. In either case, the delegate's decision of 6 August 2010 must be set aside. 26 For completeness I should record, however, that I do not accept that the question of whether a claim is in order is a matter for the formation of an opinion by the Commissioner. Section 102(1) does call for the formation of opinions but it does so expressly using the word in relation to a separate topic, "satisfied", and it is apparent that the issue of his satisfaction is directed, not at whether the claim is in order, but at the substantive question of whether the person is entitled to be enrolled. Mr Renwick submitted that there were textual indications to the contrary. He particularly noted that the satisfaction referred to in s 102(1)(c) was "in respect of residence at an address, to be enrolled for a Subdivision" and argued that this diluted somewhat the ambit of the discretion. For a time I was disposed to agree with this argument but I do not think, on reflection, that it can stand in face of s 99 which makes plain that enrolment is always linked to a Subdivision. Those words do not, therefore, operate in the limiting fashion suggested. 27 The Commissioner submitted that the position of persons of unsound mind and traitors assisted his construction. Section 93(8) no doubt prohibits such persons from being on the Roll. It was submitted that it was only by rejecting a claim of such a person as not being "in order" that one could avoid their being enrolled. I do not agree. Under s 102(1)(a) the Commissioner could reject the claim if of the view that such a person was not entitled to be enrolled in a Subdivision. In my opinion, a person who is not entitled to be enrolled at all is also not entitled to be enrolled in a Subdivision. 28 The question of whether a claim is in order under s 102 is a ministerial question turning upon the requirements of s 98(2). It provides: A claim: (a) must be in the appropriate form; and (b) subject to subsection (3), must be signed by the claimant; and (c) must comply with section 98AA (evidence of identity requirements), if that section applies to the claim. 29 The pertinent part of s 98AA is subsection (2) and it provides: The person's claim or application must include or be accompanied by any of the following: (a) if the person holds a driver's licence issued under the law of a State or Territory - the number of that driver's licence; (b) if the person holds an Australian passport - the number of that Australian passport; (c) an attestation as to the person's identity that is: (i) in the approved form; and (ii) signed by another person who is enrolled; (d) any other evidence of the person's identity that is of a kind prescribed by the regulations for the purpose of this paragraph. 30 The only question which arises when considering whether a claim is "in order" is whether there is an approved form, whether it has been signed and properly completed, and whether appropriate identification has been provided. The words "in order" do not permit, still less require, the Commissioner to investigate, for example, whether the driver's licence presented had been validly issued. In this case, all of the requirements of s 98(2) were met by Ms Trevitt; the inevitable consequence is that the claim is in order within the meaning of s 102. 31 I turn then to the question of relief. The interests of Ms Trevitt and Getup are sufficiently served by orders setting aside the delegate's decision of 6 August 2010 and declaring Ms Trevitt's claim of 22 July 2010 to be in order for the purposes of s 102(1). The Commissioner has indicated that if those orders are made he will rapidly proceed to deal with her claim. In those circumstances it is not appropriate to grant injunctive relief against the Commissioner. The orders I make are: 1. Set aside the decision of the delegate made on 6 August 2010. 2. Declare that the second applicant's claim lodged with the respondent on 22 July 2010 is "in order" for the purposes of s 102(1)(b) of the Commonwealth Electoral Act 1918 (Cth). 3. The respondent pay the applicants' costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.