Rowe v Electoral Commissioner

Rowe v Electoral Commissioner - [2010] HCA 46 - HCA 2010 case summary — Zoe

[27]

Section 7 of the Constitution of the Commonwealth requires that the senators for each State be "directly chosen by the people of the State". Section 24 requires that the members of the House of Representatives be "directly chosen by the people of the Commonwealth".
When the Commonwealth Constitution came into effect in January 1901, the qualification of electors of members of the House of Representatives was, by operation of s 30, that prescribed by State law as the qualification of electors of the more numerous House of Parliament of each State. Section 8 prescribed that the qualification of electors of members of the House of Representatives was the qualification of electors of senators. There was a transitional "constitutional franchise"[7]. Section 30 was to apply until the Commonwealth Parliament otherwise provided. In addition, by ss 10 and 31, until the Parliament of the Commonwealth otherwise provided, the laws in force in each State relating to elections for the more numerous House of the Parliament of the State, as nearly as practicable, applied to elections of senators for the State and of members of the House of Representatives. The Parliament of the Commonwealth was also empowered to make laws prescribing the method of choosing senators, but so that such method should be uniform for all States[8].
The words "[u]ntil the Parliament otherwise provides" in ss 10, 30 and 31 attract the power conferred upon the Parliament by s 51(xxxvi) to make laws "with respect to … matters in respect of which this Constitution makes provision until the Parliament otherwise provides". Read with s 30, s 51(xxxvi) empowers the Parliament to make laws providing for the qualification of electors of members of the House of Representatives. By operation of s 8 those qualifications are also the qualifications of the electors of senators. Read with ss 10 and 31, s 51(xxxvi) also empowers the Parliament to make laws relating to the election of senators and members of the House of Representatives. Those powers are exclusive to the Commonwealth[9]. Isaacs J characterised the power to make laws with respect to elections as a "plenary power over federal elections"[10]. To say that of the power under s 51(xxxvi) is to say what is true of every power conferred by s 51[11]. It is a power subject to the limitations imposed by the Constitution. The exercise of that power is in issue in this case.
Parts II and III of Ch I of the Constitution contain other provisions relating to elections for the Senate and the House of Representatives, including provision for the issue, by the Governor-General, of writs for general elections of members of the House of Representatives[12] and for the issue by State Governors of writs for elections of senators for the States[13]. Section 41 protected the electors for the more numerous Houses of Parliament of the States from being prevented, by any law of the Commonwealth, from voting at elections for either House of the Parliament of the Commonwealth. That provision, however, has no effect on the present case as it only protects rights to vote which were in existence at Federation[14].

[28]

Under the Constitution, the Commonwealth Parliament was to decide whether and when to pass laws defining the qualifications of electors and the methods of election. This it did by enacting the Commonwealth Franchise Act 1902 (Cth) and the Commonwealth Electoral Act 1902 (Cth). By the former Act it created a "statutory franchise"[15] which replaced the constitutional franchise. Having defined the qualifications of electors, the Parliament could validly impose conditions upon the exercise of the right to vote which were incidental to or in aid of the laws defining the qualifications or embodied in laws relating to the election of senators and members of the House of Representatives.
The Commonwealth Franchise Act 1902 and the Commonwealth Electoral Act 1902 and their successor statutes were enacted against the background of colonial laws defining the franchise, identifying those entitled to exercise it and providing for the conduct of elections. Not surprisingly those laws and their provision for voter enrolment as a condition of the right to vote were inspired by the electoral laws of the United Kingdom.
The registration and listing of qualified electors on an electoral roll or list, as a condition of the exercise of the right to vote, was introduced in England and Wales by the Representation of the People Act 1832[16]. Until 1832 a person wishing to vote "appeared at the poll, tendered his vote, and then and there swore an oath prescribed by statute to the effect that he had the requisite qualification"[17]. The 1832 Act was also the first step in a process of simplification and extension of what was a complex and restrictive franchise[18]. That complexity generated delays in electoral processes caused by the need, absent an electoral roll, to verify the identity and qualification of persons claiming to be entitled to vote. The purpose of registration therefore was "not so much to prevent fraud or to secure the rights of the bona fide electors, as to decrease the expense of elections"[19]. Legislative changes were made after 1832[20]. Further reform statutes were passed in 1865 and 1867[21]. Loss of voting rights for failure to comply with registration requirements was substantial. Registration was evidently a burdensome process and from the point of view of some electors: "the privilege of voting was not worth the pains"[22]. A common register was established in 1878 for parliamentary and municipal electors[23]. By the Registration Act 1885[24] the process of registration in counties was assimilated to that of boroughs and a uniform system put in place[25]. The system operated more smoothly after that time[26]. As appears from the history, the purpose of registration was practical and directed to dealing with the consequences of the complicated and diverse qualifications required for a person to become an elector.
The relationship of registration to the franchise and the franchise to the qualification to vote was viewed in different ways by constitutional scholars. Sir William Anson characterised registration as "a condition precedent to the exercise of the right to vote" and as "preliminary to the enjoyment of the franchise"[27]. He applied the term "the Franchise" to the right to vote for members of the House of Commons[28]. He acknowledged that the term was also applied to the qualification which confers the right to vote. Maitland, on the other hand, said that "the only qualification that (in strictness) entitles one to vote is the fact that one is a registered elector"[29]. Quick and Garran, summarising the "qualifications of electors" under State laws at Federation, applied the term primarily to requirements such as gender, age and status as a natural-born or naturalised British subject but at one point appeared to include enrolment as a qualification[30]. The Commonwealth Franchise Act 1902 defined the class of persons entitled to vote by reference to age, residence, status as a natural-born or naturalised British subject, and enrolment for the Electoral Roll for any Electoral District[31]. The proposition that a person enrolled fell within the statutory term "qualified to vote" and was thereby entitled to sign an election petition was endorsed by Brennan ACJ in Muldowney v Australian Electoral Commission[32]. The right to vote conferred by s 93 of the CEA was then, as it is now and has been since the Commonwealth Franchise Act 1902, dependent upon enrolment[33]. Mason CJ in Re Brennan; Ex parte Muldowney[34] thought s 93 prescribed "qualifications to be enrolled and to vote respectively". What Brennan ACJ said in Muldowney v Australian Electoral Commission was endorsed in Snowdon v Dondas[35].
The Australian colonies enjoyed a faster evolution towards democratisation than the United Kingdom[36]. Universal manhood suffrage was adopted in South Australia with the introduction of responsible government[37]. Victoria and New South Wales followed suit in 1857 and 1858[38]. The same franchise was introduced in Queensland in 1885 and Western Australia in 1893[39]. Tasmania introduced it in 1901[40]. The franchise was extended to women in South Australia in 1895 and Western Australia in 1900[41]. Soon after Federation women in the remaining States also acquired the franchise[42]. The Commonwealth Franchise Act 1902 provided for universal adult franchise but excluded "aboriginal native[s] of Australia Asia Africa or the Islands of the Pacific except New Zealand", save for those entitled to vote by virtue of s 41 of the Constitution[43]. It also excluded persons of unsound mind, persons attainted of treason and persons under sentence or subject to be sentenced for any offence punishable by imprisonment for one year or more.
The electoral laws of the Australian colonies in the 19th century replicated important elements of the British system. A distinction between the qualification of electors and the requirements of listing, enrolment or registration was a common feature of such laws. The qualifications of electors were, for the most part, to be found in early colonial Constitutions, although sometimes they were repeated in electoral statutes[44]. Registration or enrolment requirements were found in statutes made under the Constitutions.
The position at Federation was that the electoral laws of each of the Australian colonies conditioned the right to vote in an election upon enrolment on the relevant Electoral Roll[45]. Those electoral laws also provided for closure of the Electoral Rolls to new enrolments or transfers prior to polling day, although with variations in their cut-off dates[46].
Having regard to the historical origins and purpose of voter registration and the mixed usage of the term "qualification" evidenced in Quick and Garran, it might be thought that if enrolment is a qualification in the constitutional sense, it is at best ancillary to those qualifications which otherwise define the franchise. The history of registration laws in the United Kingdom and in Australia provide support for that characterisation. In any event, all laws of the Commonwealth Parliament providing for enrolment and for the conduct of elections must operate within the constitutional framework defined by the words "directly chosen by the people".

[31]

The term "common understanding", as an indication of constitutional meaning in this context, is not to be equated to judicial understanding. Durable legislative development of the franchise is a more reliable touchstone. It reflects a persistent view by the elected representatives of the people of what the term "chosen by the people" requires.
Gleeson CJ adverted to the irreversible evolution of "chosen by the people" in Roach v Electoral Commissioner[50] when he answered in the negative the question: "Could Parliament now legislate to remove universal adult suffrage?"[51] The reason for that negative answer was to be found in ss 7 and 24 of the Constitution. Although those sections did not require universal adult suffrage in 1901, it had become, as McTiernan and Jacobs JJ had said in McKinlay, a "long established" fact[52]. The Chief Justice concluded that "in this respect, and to this extent, the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote"[53].
It may be accepted, having regard to the narrower view of the franchise that subsisted in 1901, that the term "the people" in ss 7 and 24 of the Constitution is not limited to those who are qualified to vote. However, the adoption of universal adult-citizen franchise has caused the two concepts to converge. The people who choose are the electors. The non-inclusion of non-citizens, minors and incapable persons and persons convicted of treason or treachery, or serving sentences of imprisonment of three years or more for offences against Commonwealth, State or Territory law leaves little relevant room for distinguishing between "the people" and those entitled to become electors.
While the term "directly chosen by the people" is to be viewed as a whole, the irreversibility of universal adult-citizen franchise directs attention to the concept of "the people". Analogous considerations may apply to the term "chosen" and to the means by which the people choose their members of Parliament. Where a method of choice which is long established by law affords a range of opportunities for qualified persons to enrol and vote, a narrowing of that range of opportunities, purportedly in the interests of better effecting choice by the people, will be tested against that objective. This is not to suggest that particular legislative procedures for the acquisition and exercise of the entitlement to vote can become constitutionally entrenched with the passage of time. Rather, it requires legislators to attend to the mandate of "choice by the people" to which all electoral laws must respond. In particular it requires attention to that mandate where electoral laws effect change adverse to the exercise of the entitlement to vote. In this case it is the alteration of a long-standing mechanism, providing last-minute opportunities for enrolment before an election, that is in issue.

[38]

While "common understanding" of the constitutional concept of "the people" has changed as the franchise has evolved, "the people" is not a term the content of which is shaped by laws creating procedures for enrolment and for the conduct of elections. If such a law denies the right to vote to any class of person entitled to be an elector, it denies it to that class of "the people". Such a law may be valid. But the logic of the constitutional scheme for a representative democracy requires that the validity of such a law be tested by reference to the constitutional mandate of direct choice by "the people". Where, as in the present case, the law removes a legally sanctioned opportunity for enrolment, it is the change effected by the law that must be considered. It is not necessary first to determine some baseline of validity. Within the normative framework of a representative democracy based on direct choice by the people, a law effecting such a change causes a detriment. Its justification must be that it is nevertheless, on balance, beneficial because it contributes to the fulfilment of the mandate. If the detriment, in legal effect or practical operation, is disproportionate to that benefit, then the law will be invalid as inconsistent with that mandate, for its net effect will be antagonistic to it. Applying the terminology adopted in Roach, such a law would lack a substantial reason for the detriment it inflicts upon the exercise of the franchise. It is therefore not sufficient for the validity of such a law that an election conducted under its provisions nevertheless results in members of Parliament being "directly chosen by the people".
The Solicitor-General of the Commonwealth drew by analogy upon a distinction, made in this Court, between laws intended to impose a direct burden upon the implied freedom of political communication and those which restricted communication as part of a broader scheme of regulation[59]. The plaintiffs, it was submitted, failed at the threshold because the impugned laws were directed to keeping the Electoral Rolls up to date. Save for certain exceptional cases[60], persons who complied with the duties imposed under s 101 of the CEA would not need to enrol or vary their enrolment when an election was called. The submission rested upon the premise that a change in a procedural or machinery law relating to elections which removes a pre-existing opportunity for enrolment by qualified persons does not require substantial justification. The premise, for the reasons already outlined, is not accepted. The submission must be rejected.
The Commonwealth, nevertheless, sought to support the amendments as procedural laws "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government". The fixing of some cut-off date for enrolment consequent upon the issue of writs for an election was appropriate and adapted to that end. The Commonwealth relied upon the legislative scheme in which the cut-off provisions find their place and which provides for:

[47]

On Saturday, 17 July 2010, the Prime Minister announced her intention to call a general election for the Senate and the House of Representatives. On the same day, her Excellency, the Governor-General, acting upon the advice of the Prime Minister, prorogued the Parliament from 4.59 pm on Monday, 19 July until Saturday, 21 August 2010[62]. Writs were issued on 19 July for the election of members of the House of Representatives for the States and Territories and for the election of senators for the Territories by the Administrator in Council and for the election of senators for the States by their respective vice-regal representatives.
The writs fixed 22 July 2010 for the closing of the Rolls, 29 July 2010 for the closing of nominations, 21 August 2010 for polling and on or before 27 October 2010 for the return of the writs.
The plaintiffs are both students. Both are Australian citizens. The first plaintiff, Shannen Rowe, turned 18 on 16 June 2010. At the time the election was announced she was not enrolled to vote. A completed form was not lodged on her behalf until Friday, 23 July 2010. By operation of s 102(4) of the CEA, her claim for enrolment, having been lodged after 8 pm on the day of the issue of the writs, could not be considered until after the close of polling at the election. The second plaintiff, Douglas Thompson, was 23 years of age and was enrolled to vote for the Division of Wentworth at an address in that Division. However, in March 2010 he had moved to a new address in the Division of Sydney. Following an abortive attempt to lodge electronically a claim for transfer of his enrolment pursuant to s 101 of the CEA, he completed a form which he signed on 22 July and which was lodged by facsimile transmission with the AEC by his solicitor. By virtue of s 102(4AA) of the CEA, however, his claim for transfer, having been lodged after 8 pm on the date of the close of the Rolls, could not be considered until after the close of polling at the election.
Ms Rowe and Mr Thompson commenced proceedings in this Court on 26 July 2010 on their own behalf and as representative parties claiming a declaration that ss 102(4), 102(4AA) and 155 of the CEA are invalid. They also sought an order to show cause why writs of mandamus should not issue directed to the Electoral Commissioner in effect requiring that they be included on the Electoral Rolls for their respective Divisions.
On 29 July 2010, Hayne J made an order pursuant to r 25.03.3(b) of the High Court Rules 2004 referring the proceedings for further hearing by a Full Court on Wednesday, 4 August 2010. The plaintiffs continued the proceedings on their own behalf and not in a representative capacity. They filed an amended application by leave. The parties also filed a statement of agreed facts.

[51]

The Electoral Commissioner is the chief executive officer of the AEC[67]. There is an Australian Electoral Officer for each State[68]. There is a Divisional Returning Officer for each Electoral Division, whose duty it is to give effect to the Act "within or for the Division subject to the directions of the Electoral Commissioner and the Australian Electoral Officer for the State"[69].
Under Pt IV of the Act each State and the Australian Capital Territory are "distributed into Electoral Divisions" with one member of the House of Representatives to be chosen for each Division[70]. There is a provision for the redistribution of the Divisions in a State or the Territory[71] and a requirement for monthly assessments of the number of persons enrolled in each Division, the average divisional enrolment and the extent to which the number of electors enrolled in each Division differs from that average[72]. A mini-redistribution can be undertaken after the issue of the writs for an election where the number of Divisions in a State differs from the number of members to which the State is entitled[73]. That process involves a consideration of the number of electors enrolled in the various Divisions within the State. The Rolls therefore have an important part to play in the redistribution process.
Part VI of the CEA provides for a Roll of electors for each State and for each Territory[74]. Each of those Rolls is made up of the Rolls for the Divisions within the State or Territory[75]. The Rolls are to contain the name and address of each elector and such further particulars as are prescribed[76]. Rolls can be inspected[77] and information contained in them must be made available to specified classes of persons and organisations[78]. The AEC must conduct reviews of the Rolls with a view to ascertaining such information as is required for their preparation, maintenance and revision[79].
The AEC has, since 1999, used a process of data-matching, designated "Continuous Roll Update" ("CRU"), to maintain the Electoral Roll. By this process personal information on electors held by the AEC is matched with external data from other agencies and from some utility companies. Where data-matching indicates that an elector has become eligible or has changed his or her address, the AEC sends a letter to or visits the elector. This process can result in an enrolment or a transfer of enrolment occurring. Non-response to attempted communication can lead to the removal of the elector from the Roll under the objection process for which Pt IX provides[80].
The scale of the CRU undertaking is indicated by the fact that between 2000-2001 and 2004-2005 the AEC each year processed about four million records showing a change of address or likely eligibility to enrol. Targeted mail was sent to 2.8 million addresses each year. Field visits were made to 330,000 habitations annually. This activity generated about 850,000 enrolments annually. The result of the activity was more complete Electoral Rolls. There was, however, a much lower rate of return, in terms of enrolments, having regard to extra expenditure in 2007, compared with the return in 2004.
During 1997, the AEC introduced enhancements to its computerised Roll Management System ("RMANS") in order to detect and deter fraudulent enrolment. The RMANS Address Register separately identifies each known address, based on known streets and localities, and lists a range of attributes for the address, including whether the address is habitable and valid for enrolment. The Register is then used to assess the validity of addresses listed on enrolment claims.
Qualifications and disqualifications for enrolment and for voting are dealt with in Pt VII of the CEA. A key provision of Pt VII is s 93. It sets out conditions upon which persons "shall be entitled to enrolment"[81]. They are persons who have attained 18 years of age and who are Australian citizens[82]. Also entitled are non-citizens who would have been British subjects within the meaning of the relevant citizenship law had it continued in force and whose names were, before 26 January 1984, on a Roll[83]. An "Elector" is defined in s 4(1) as "any person whose name appears on a Roll as an elector" and whose name is on the Roll for a Division. An elector is "entitled to vote at elections of Members of the Senate for the State that includes that Division and at elections of Members of House of Representatives for that Division"[84].
Some classes of persons are not entitled to enrolment or to vote. The holders of temporary visas under the Migration Act 1958 (Cth) and unlawful non-citizens under that Act are not entitled to enrolment[85]. Persons who, by reason of being of unsound mind, are incapable of understanding the nature and significance of enrolment and voting and persons convicted of treason or treachery and not pardoned are not entitled to enrolment or to vote at any Senate election or election for the House of Representatives[86]. Also disqualified are persons serving a sentence of imprisonment of three years or longer[87].
Persons resident in Australia who are leaving Australia may be included on the Roll as eligible overseas electors[88]. Persons who have ceased to reside in Australia and intend to resume residence within six years of ceasing may apply for enrolment and be enrolled[89]. Spouses, de facto partners and children of eligible overseas electors may apply for enrolment[90]. There is also provision for the enrolment of itinerant electors, a class which includes homeless persons[91]. There are cut-off provisions, preventing consideration of the enrolment of persons in some of these categories, which operate from 8 pm on the day that the writs have issued for an election[92]. The validity of the amendments which introduced these provisions was challenged by the plaintiffs in their further amended application. That was a necessary consequence of their challenge to the cut-off provisions affecting them, which are to be found in Pt VIII of the CEA. No objection was taken to their standing to do so. It was accepted that the cut-off provisions introduced by the Amendment Act would stand or fall together.
Section 93 is made under two heads of constitutional power. The first is the power to make laws to prescribe the qualifications of electors[93]. The second is the power to make laws relating to the election of senators and members of the House of Representatives[94]. The two heads of legislative power are logically distinct. Nevertheless, laws prescribing electoral processes may validly impinge upon the entitlement to vote at an election. As already explained, the only proper purpose of such processes is to provide the means by which "the people" may choose the members of their Parliament. That statement of purpose is a generalisation of the rationale offered by Griffith CJ in Smith v Oldham for laws regulating the conduct of persons with regard to elections[95]:

[53]

The logical distinction between the two heads of power was acknowledged by Gibbs CJ, Mason and Wilson JJ in R v Pearson; Ex parte Sipka[96]. The provision of the CEA there under consideration, to the extent that it impinged upon voting rights said to be protected by s 41 of the Constitution, was s 45(a). The latter section provided a cut-off for claims for enrolment and transfers of enrolment upon issue of the writs for an election. It was characterised by their Honours as a law relating to elections for members of the House of Representatives and senators[97]. It does not appear from the joint judgment of Brennan, Deane and Dawson JJ that their Honours, as the Commonwealth submitted in this case, treated s 45(a) as an aspect of the definition of the Commonwealth franchise under ss 8 and 30. The Commonwealth submitted that in any event the subject matters of qualification of electors and elections are not mutually exclusive. That may be accepted. A law may be a law with respect to both subject matters. But the class of law which defines the qualifications of electors, even if it extends to laws making enrolment a condition of entitlement to vote, does not extend to procedural laws prescribing cut-off dates for the lodgement of claims for enrolment or transfer of enrolment.
Part VIII of the CEA sets up a system of compulsory enrolment. Every person who is entitled to be enrolled for any Subdivision, whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll, is required to "forthwith fill in and sign a claim and send or deliver the claim to the Electoral Commissioner"[98]. The requirement does not apply to persons applying to be treated as eligible overseas electors under s 94 or their spouses, de facto partners or children. It does not apply to itinerant electors, nor to persons who have turned 16 and who are thereby eligible under s 100 of the CEA to lodge a claim in advance of turning 18.
By operation of s 98AA[99], certain classes of prospective electors, including those making claims as itinerant or overseas electors, are required to supply evidence of their identity. The methods of proof available are specified in sub-s (2) and in regs 11A and 12 of the Electoral and Referendum Regulations 1940 (Cth).
Subject to an immaterial exception, a person whose name is not on the Roll on the expiration of 21 days from the date upon which the person became so entitled is guilty of an offence unless he or she proves that the non-enrolment was not the result of a failure to send a completed claim to the Electoral Commissioner[100]. There is also an offence committed when a person changes his or her address within a particular Subdivision and does not give notice of the new address within 21 days to the Electoral Commissioner[101]. Failure to comply with the obligations under s 101 constitutes an offence punishable on conviction by a fine not exceeding one penalty unit. There is, however, a saving provision in s 101(7), which provides:

[74]

AEC records for the period 1993-2006 show the number of new enrolments, re-enrolments and transfers of enrolment undertaken during the grace period after the issue of the writs. The number of such transactions represented well in excess of 350,000 electors in each of the 1993, 1996, 1998 and 2001 elections. For each of the 1998 and 2001 elections the number of new enrolments and re-enrolments increased daily during the seven-day period (save for Saturdays and Sundays). In 2004, the close-of-Rolls transactions represented 17.5 per cent of total enrolment activity for the 2004-2005 financial year. Of 520,086 close-of-Rolls transactions, 265,513 enrolment cards were received from voters whom the AEC had contacted in the 12 months prior to the election.
Following the Amendment Act the post-announcement grace period for the 2007 election was three days for new enrolments and nine days for updating existing enrolments. There were in those periods 279,469 enrolment transactions. Some 100,370 people lodged their claims for enrolment or transfer of enrolment after the close of the Rolls.
The AEC reported to the Australian National Audit Office ("the ANAO"), following the 2007 election, that it had faced a far greater challenge in 2007 due to the shortened close of the Rolls. It was not able to rely upon its previous strategy, used in 2004, which involved advertising when the election was called and drawing attention to the seven-day close-of-Rolls period. The AEC also reported that in 2007 it had achieved "a small gain in enrolment efficiency measured by transaction". The gain was expensive. About $36 million was spent on enrolment activity, including advertising, before the 2007 election. The marginal cost of each of the net additional 118,885 enrolments in 2007 was over $216, nearly seven times the unit cost per additional enrolment in 2004.
As to the problem of electoral fraud, the AEC stated, in a submission to the JSCEM in October 2000, that "identity fraud is not a significant problem in the federal electoral system". The AEC observed:

[108]

The plaintiffs in reply to the Commonwealth contended that the statements made by the JSCEM in its report were not a substitute for evidence and could not establish a legitimate end for the impugned provisions when the material from independent authorities such as the AEC and the ANAO were to the contrary. This submission must be rejected. The rationale advanced by the JSCEM for amendment to the law was, in effect, incorporated by reference into the Second Reading Speech for the Amendment Act. To the extent that the purposes identified in the report fell within the scope of the constitutional mandate, it is not a condition of the validity of the legislation that those recommendations were based upon findings or assumptions of fact. The ends identified by the JSCEM were legitimate in terms of the constitutional mandate. But for the reasons already given that conclusion does not end the inquiry as to validity.
Importantly, there was nothing to support a proposition, and the Commonwealth did not submit otherwise, that the impugned provisions would avert an existing difficulty of electoral fraud. Nor was there anything to suggest that the AEC had been unable to deal with late enrolments. Indeed, it had used the announcement of an election, coupled with the existence of the statutory grace period, to encourage electors to enrol or apply for transfer of enrolment in a context in which its exhortations were more likely to be attended to and taken seriously than at a time well out from an election.
The plaintiffs, in their submissions, pointed to existing mechanisms to ensure the integrity and accuracy of the Rolls. These included the CRU process, the RMANS Address Register and more stringent proof-of-identity requirements introduced in connection with the 2006 amendments and reflected in s 98AA of the CEA and regs 11A and 12 of the Electoral and Referendum Regulations 1940.
The constitutional legitimacy of measures calculated to ensure that people who are not entitled to vote do not vote was, of course, accepted by the plaintiffs. They pointed, however, to the absence of any evidence of the existence prior to the Amendment Act of a significant number of persons voting who were not entitled to vote. They contrasted that absence with the evidence of the effect of the impugned provisions in preventing an estimated 100,000 citizens from being enrolled or transferring their enrolment.
The legal effect of the impugned provisions is clear. They diminish the opportunities for enrolment and transfer of enrolment that existed prior to their enactment. These were opportunities that had been in place as a matter of law for eight federal elections since 1983. They were consistent with an established executive practice which provided an effective period of grace for nearly 50 years before 1983. The practical effect of the Amendment Act was that a significant number of persons claiming enrolment or transfer of enrolment after the calling of an election could not have their claims considered until after the election. That practical effect cannot be put to one side with the observation, which is undoubtedly correct, that those persons were so affected because of their own failures to claim enrolment or transfer of enrolment in accordance with their statutory obligations. The reality remains that the barring of consideration of the claims of those persons to enrolment or transfer of enrolment in time to enable them to vote at the election is a significant detriment in terms of the constitutional mandate. That detriment must be considered against the legitimate purposes of the Parliament reflected in the JSCEM Report. Those purposes addressed no compelling practical problem or difficulty in the operation of the electoral system. Rather they were directed to its enhancement and improvement. In my opinion, the heavy price imposed by the Amendment Act in terms of its immediate practical impact upon the fulfilment of the constitutional mandate was disproportionate to the benefits of a smoother and more efficient electoral system to which the amendments were directed.
For the preceding reasons, I joined in the order made on 6 August 2010. I agree also that the application should be otherwise dismissed.
GUMMOW AND BELL JJ. This proceeding in the original jurisdiction of the Court was instituted on 26 July 2010, seven days after the issue of writs for a general election to be held on Saturday 21 August 2010. The first plaintiff, Ms Rowe, is an Australian citizen who attained the age of 18 years on 16 June 2010 and desires to vote in the general election. The second plaintiff, Mr Thompson, is an Australian citizen aged 23 who was enrolled to vote at an address in the Electoral Division of Wentworth in the State of New South Wales. In March 2010 he moved to an address in the Electoral Division of Sydney but, prior to 22 July 2010, did not advise the Australian Electoral Commission ("the Commission") and seek the transfer of his enrolment. He also wishes to vote at the general election and to do so in the Electoral Division of Sydney.
The second defendant is the Commonwealth of Australia and the first defendant the Electoral Commissioner, who is the chief executive officer of the Commission, pursuant to the provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"). The Commission is established by s 6 of that statute.
The term "Elector" is defined in s 4(1) as a person whose name appears as an elector on an Electoral Roll. Part VI (ss 81‑92) of the Electoral Act provides that there be a Roll of electors for each State and for each of the Territories (s 81), with a Roll for each Electoral Division for the election of a member of the House of Representatives[130], and for each Subdivision of an Electoral Division (s 82)[131]. A central feature of the system for the polling established by Pt XVI (ss 202A‑245) of the Electoral Act is the receipt by the elector of a ballot paper and the marking of the vote in private (ss 231‑233). The secrecy which attends this system makes the description "compulsory attendance" more appropriate than "compulsory voting", though the latter often is used. Part XVI also provides for provisional votes (s 235) and Pt XV (ss 182‑200) provides for postal voting.
Amendments were made to the Electoral Act by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the 2006 Act")[132]. Each plaintiff would be entitled to vote at the pending general election if named on the relevant Electoral Roll maintained under the Electoral Act (s 93(1), (2)). Neither plaintiff was so named on Monday 19 July 2010 when the writs for the general election were issued but both sought to rectify the position by claiming enrolment and transfer of enrolment, respectively, within the seven day period after the issue of the writs. Their claims would have been well made under the provisions of the Electoral Act as the statute stood before the 2006 Act. However, the provisions of the Electoral Act as they have stood since the amendments made by the 2006 Act, if they are valid, would operate to close the Electoral Roll against the plaintiffs pending the holding of the general election on 21 August 2010. The Roll closed at 8pm on Monday 19 July for claims to new enrolments and at 8pm on Thursday 22 July for claims to transfers of enrolment.
The evidence given for the Electoral Commissioner estimated that possibly as many as 100,000 claims for enrolment were in the same position as those made by the plaintiffs.
In this Court the plaintiffs sought to establish the invalidity of the repeal effected by the relevant provisions of the 2006 Act. By order of a Justice of this Court made on 29 July 2010 the proceeding was referred for further hearing by the Full Court on a Statement of Agreement Facts. At the hearing on 4 and 5 August 2010 the Attorney‑General for the State of Western Australia intervened in support of the validity of the legislation.
At 12 noon on 6 August 2010 the Court, by majority, declared that certain Items[133] of Sched 1 to the 2006 Act are invalid. These Items were expressed to repeal particular provisions of the Electoral Act then in force. The effect of the declaration of invalidity is that those Items were ineffective to achieve that repeal so that the statute, as it stood before that ineffective repeal, has remained in force[134]. The Court ordered that the Commonwealth pay the costs of the plaintiffs.
The evidence on behalf of the Electoral Commissioner, and submissions by counsel, indicated that if the declaration were made by the Court on 6 August the expectation would be that the electronic roll referred to in s 111 of the Electoral Act would be completed by 18 August and the postal and provisional voting systems utilised as the need arose for the conduct of the polling on 21 August. Accordingly, and the contrary was not suggested, there was utility in the Court making the declaration on 6 August.
What follows are our reasons for joining in the making of that order.

[126]

Section 152(1) of the Electoral Act stipulated that the writs fix the dates for the close of the Electoral Rolls maintained under that statute, and for the nomination, the polling and the return of the writ. Succeeding provisions space the times which may be fixed for each of these steps.
Item 52 of Sched 1 to the 2006 Act, the validity of which has been successfully challenged in this litigation, purported to insert a new s 155 into the Electoral Act which fixed the date for the closing of the Rolls as the third working day after the date of the relevant writ. Item 41, the validity of which also was successfully challenged, repealed s 102(4) and inserted provisions which required the deferral until after the election of claims to enrolment received during the period beginning at 8pm on the date of the writ, and of claims for transfer of enrolment received during the period beginning at 8pm on the date for the close of the Rolls.
Sections 156 and 175 provide for the closing of nominations at 12 noon not less than 10 days nor more than 27 days after the date of the writ. The date of polling must be a Saturday which is not less than 23 days nor more than 31 days after the date of nomination (ss 157 and 158). The writs must be returned not more than 100 days after issue (s 159). As already indicated, s 5 of the Constitution requires that the meeting of the new Parliament must occur not later than 30 days after the day appointed for the return of writs.
On 19 July 2010, that is to say on the same day as Her Excellency the Administrator issued writs for the election of members of the House of Representatives and for the Territory senators, Vice Regal representatives in each of the States fixed dates for the election of State senators[140]. The spacing of and the dates for the steps for each election, beginning with the issue of the writ, corresponded with that already indicated for the election of members of the House of Representatives and senators for the Territories.
By force of s 152(2) of the Electoral Act and s 37 of the Acts Interpretation Act 1901 (Cth), the writs issued on 19 July 2010 were deemed to have been issued on that day at 6pm on the standard or legal time in the State or part of the Commonwealth in which they were issued.
The writs were addressed, as required by Sched 1 to the Electoral Act, to the Australian Electoral Officer for each State (in the case of State senators), the Australian Electoral Officer for each Territory (in the case of Territory senators) and the Electoral Commissioner (in the case of elections for the House of Representatives) and each commanded these officials to ensure that the election in question "be made according to law".
Provision for the offices held by these officials is made by Pt II (ss 5‑38) of the Electoral Act. There is an Australian Electoral Officer for each State (s 20), and an Australian Electoral Officer for the Australian Capital Territory appointed for the purposes of each election (s 30). The Australian Electoral Officers for each State are subject to the directions of the Electoral Commissioner (s 20(1)). There is also a Divisional Returning Officer for each Division who is subject to the directions of the Electoral Commissioner and, in the case of each State, to the directions of the Australian Electoral Officer for the State (s 32).
The effect of the declaration made by this Court is that if the relevant officials are to ensure that the elections identified in the writs issued on 19 July are to "be made according to law" as the writs require, this must be on the footing that the date fixed for the close of the Rolls was not 22 July 2010, as stated in the writs, but seven days after the date of the issue of the writs.
Part XIX (ss 283‑286) of the Electoral Act deals with the return of the writs after the ascertainment of the result of the relevant election. Section 285 provides for the remedy by proclamation of "errors" in the preparation of rolls, writs, ballot papers and voter lists. Section 286 empowers the person causing a writ to be issued to make provisions, by notice published in the Gazette, meeting any difficulty which might otherwise interfere with the due course of the election; any provision so made shall be valid and sufficient and any date provided in lieu of a date fixed by the writ shall be deemed to be the date so fixed.

[132]

Sections 8, 30 and 51(xxxvi) of the Constitution provide, subject to the Constitution, for the making by the Parliament of laws respecting the qualification of electors in Senate and House of Representatives elections. Sections 9, 31 and 51(xxxvi) of the Constitution provide, subject to the Constitution, for the making by the Parliament of laws respecting "the method of choosing" senators and members of the House of Representatives.
Part VII (ss 93‑97) of the Electoral Act deals with qualifications for, and disqualifications from, enrolment and voting and Pt VIII (ss 98AA‑112) with enrolment. The legislative scheme apparent in Pt VII and Pt VIII entwines the method adopted for the choice of representatives (a secret ballot of enrolled electors) with the necessary qualifications of electors with respect to such matters of status as age and citizenship. The provisions of the Electoral Act thus have a duplicate or sequential character.
The plaintiffs complain of "disenfranchisement" in the sense that by reason of the provisions of the 2006 Act they have been denied what otherwise would be the effect of their status as persons qualified to vote at the election on 21 August 2010. They also complain that while legislation of this character must be directed to the selection of members and senators who are chosen by the people, the provisions of the 2006 Act adopt a method which is not reasonably appropriate and adapted to serve the making of the electoral choice of which ss 9 and 31 of the Constitution speak.
The central submission by the plaintiffs is that the Parliament in choosing the means to achieve the integrity of the Roll necessary to give effect to popular choice within the meaning of ss 7 and 24 of the Constitution must select a means which is no more than necessary to preserve that integrity and must not legislate to deny unreasonably the opportunity to enrol and vote.
The requirement for enrolment has been entwined with the requirements for status since the Commonwealth Franchise Act 1902 (Cth). Section 3 provided that subject to the provisions for disqualification in s 4, adults not under 21 years of age, who were natural born or naturalised subjects of the King and had lived in Australia for six months continuously, and who were enrolled, were entitled to vote.
Section 93 of the Electoral Act as it now stands selects from among the population all persons who are not disqualified and have attained 18 years of age and are either Australian citizens or members of a closed class of British subjects who were enrolled immediately before 26 January 1984; if enrolled they are entitled to vote.
While the course of the legislation since 1902 has conditioned the exercise of the franchise upon enrolment in the manner described, there has been significant change in the selection by the Parliament of those among the population who are to be taken to answer the constitutional expressions in ss 7 and 24 respectively "by the people of the State" and "by the people of the Commonwealth".
This reflects the development of Australian citizenship law, which in turn followed the emergence of national status with the winding‑up of the Empire[142]. It also reflects changing views of the role in Australian society of young persons, even if still of secondary school age in many cases, who have attained the age of 18 years, in matters of the franchise as well as of testamentary and contractual competence, service in the armed forces, and the like.

[136]

It has been well said that one of the assumptions as to "traditional conceptions" upon which the Constitution was framed was the rule of law[151]. The law included not only the English common law which the colonies had received, and which, of its nature, can never be wholly static, but also the enacted law. What is of enduring and immediate significance is that, whatever else it involves, "the rule of law" posits legality as an essential presupposition for political liberty and the involvement of electors in the enactment of law. In the 19th century vast changes had been wrought by legislation influenced by the utilitarian movement associated with Jeremy Bentham, and the Constitution was framed in the belief that these "progressive instincts" would animate members of legislative chambers which were chosen by the people. By this means the body politic would embrace the popular will and bind it to the processes of legislative and executive decision making.
The significance of developments in the period before the adoption of the Constitution is further considered in the reasons of Crennan J, under the headings "Britain - 'chosen by the people'" and "The Australian colonies - 'chosen by the people'". We agree that the term "chosen by the people" had come to signify the share of individual citizens in political power by the means of a democratic franchise.
The Constitution (ss 8 and 30) denied plural voting; this was then a subject of continuing debate in the United Kingdom, where it has been estimated that in 1911 there were probably more than 500,000 plural voters, some seven percent of the electorate[152]. However, subject to s 41[153], the Constitution left for provision to be made by the Parliament what were then thorny issues of the female franchise and racial disqualification[154]. These matters of qualification for the franchise and of the methods of choice to be made by the electors were, by s 51(xxxvi), left by the Constitution, in the phrase used by Barwick CJ in Attorney‑General (Cth); Ex rel McKinlay v The Commonwealth[155], to "the confidence reposed" in the Parliament. But legislative development always was to be overseen by the imperative of popular choice found in ss 7 and 24 of the Constitution.
One result is explained in the following passage from the reasons of Gleeson CJ in Roach v Electoral Commissioner[156]:

[144]

As noted above when outlining the relevant provisions of the Constitution, s 93 of the Electoral Act deals with the entitlement of persons to enrolment and to vote. The scheme of the section is to identify those "entitled to enrolment" (s 93(1)). The plaintiffs are both qualified, being Australian citizens who have attained 18 years of age and are not otherwise disqualified. Entitlement to vote is then limited to electors whose names are on the relevant Roll (s 93(2)). Provision is also made for enrolment from outside Australia (s 94A) and the eligibility of spouses, de facto partners and children of eligible overseas electors (s 95), and for persons identified as itinerant electors (s 96).
Section 102 prescribes the steps to be taken by the Electoral Commissioner upon receipt of a claim for enrolment or transfer of enrolment. Section 106 provides for the removal from the Roll of persons securing enrolment by a false statement; the removal may be made at any time between the date of issue of the relevant writ and the close of polling.
Section 245(1) states that it "shall be the duty of every elector to vote at each election". This legislatively stated duty furthers the constitutional system of representative government by popular choice. The duty is supported by s 245(15), which renders an elector who fails to vote at an election guilty of an offence.
Enrolment of qualified persons is encouraged by s 101, which deals with compulsory enrolment and compulsory transfer of enrolment. The section imposes a criminal sanction for failure to comply within 21 days of entitlement to placement upon the Roll for any Subdivision of an Electoral Division, whether by way of initial enrolment (as in the case of the first plaintiff) or by way of transfer of enrolment (as in the case of the second plaintiff).
However, common experience suggests a range of causes of human conduct, beyond careless disregard of civic responsibility, which may lead to untimely enrolment or transfer of enrolment. Hence, s 101(7) is an important provision in this compulsory system. A provision to this effect was first introduced by s 28 of the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) ("the 1983 Act"). Section 101(7) provides:

[150]

That expression of community will cannot be expected to be wholly effective and the phrase "chosen by the people" in ss 7 and 24 of the Constitution must be read so as to allow for this. Where the legislatively selected method of choice is a compulsory ballot of enrolled electors it is to be expected that there will be no perfect correspondence between those enrolled and those otherwise enfranchised. Further, the efficacy of the administrative means available to facilitate the composition and accuracy of the Roll will depend upon the resources made available by the legislation and the assistance given by changes in technology.
Section 111 of the Electoral Act (first introduced by s 35 of the 1983 Act as s 51A and later renumbered) provides for the use by the Commission of computer records relating to the Roll. In contrast, s 33 of the Commonwealth Electoral Act 1902 (Cth) had required State police officers, among others, to furnish information for the preparation and revision of lists of all persons qualified or entitled to be enrolled; using these means, almost two million names were entered on the Roll in 1903, some 96 percent of the adult population[173].
Since 1999 the Commission has maintained the Roll by a process of data‑matching authorised by s 92 of the Electoral Act and referred to as Continuous Roll Update or "CRU". Between June 1980 and June 2008 there was an increase in enrolments from 8.9 million persons to 13.8 million persons, and the net average increase in enrolment was 173,000 people per annum. This was significantly lower than the estimated 195,000 growth per annum in the estimated number of resident citizens based on census data.
With respect to the accuracy of the entries on the Rolls, a report upon the integrity of the Electoral Roll, made in 2002 by the Australian National Audit Office under the leadership of the Auditor‑General[174], found that instances of opportunistic fraud (rather than systemic or widespread fraud), such as that which had occurred in a Queensland State by‑election in 1996, were such as to be unlikely to affect the outcome of federal elections[175].
The resources of the Commission have been applied particularly in encouraging, by advertising and other methods, additional enrolments in the period immediately before general elections. The prompt processing of enrolments is assisted by a computerised Roll Management System conducted by the Commission and known as "RMANS". In 2007, by reason of the changes made by the 2006 Act shortening the period for the closing of the Rolls, the Commission could not rely on the strategic approach it had used in previous elections of starting intensive advertising once an election had been called on the basis that there was a regime for a guaranteed seven day period before the closing of the Rolls.
The plaintiffs make no complaint that were it not for the changes made by the 2006 Act, the Electoral Act would not adopt means appropriate and adapted to the choice by the people of senators and members of the House.
It was s 45 of the 1983 Act which introduced the provision later renumbered as s 155. The text is set out below and provided that the date fixed for the close of the Rolls was to be seven days after the date of the relevant writ. Previously, s 45 of the Electoral Act had required that claims for enrolment or transfer of enrolment received after 6pm on the day of the issue of the writ for an election were not to be registered until after the close of polling. That provision was repealed by s 29 of the 1983 Act and replaced by what was later renumbered as s 102(4), which is set out below.
Two things are to be said respecting this legislative history. The first is that the plaintiffs make no challenge to the seven day period. It may be that developments in technology and availability of resources will support the closure of the Rolls at a date closer to election day. But this is a matter of speculation and inappropriate for further consideration here. An implication running through the submissions presented against the plaintiffs by the Commonwealth and Western Australia was that if the changes made by the 2006 Act which are challenged by the plaintiffs are invalid, then the same principles would require that the seven day period provisions they replaced also be invalid, and the plaintiffs must fail because they challenged only the 2006 Act changes. There is no self‑evident contradiction in the plaintiffs' case. Whether the pre‑2006 Act seven day system operated to disqualify substantial numbers of electors for what then was no substantial reason in the constitutional sense does not answer the claim made by the plaintiffs respecting the 2006 Act.
The second point is that in the period before the 1983 Act when the legislation required early closure of the Rolls, no challenge was made to its validity. The reasons for that state of affairs again are a matter for speculation.
Before further proceeding in these reasons something should be said of the facts.

[178]

Items 20, 24 and 28 of Sched 1 to the 2006 Act made changes to similar effect to the provisions dealing respectively with enrolment from outside Australia (s 94A(4)), the eligibility of spouses, de facto partners and children of eligible overseas electors (s 95(4)), and itinerant electors (s 96(4)). The Commonwealth accepted that if the provisions immediately affecting the plaintiffs be invalid then the remaining Items would be invalid by parity of reasoning or as inseverable from invalid provisions. Hence attention will be directed in these reasons first to the provisions immediately affecting the plaintiffs.
The agreed facts show that with respect to the general elections conducted in 1993, 1996, 1998 and 2001, the numbers of enrolments (and re‑enrolments) and transfers of enrolment in the period between the issue of the writs and the closing dates for claims to enrol or transfer were, respectively, 377,769; 376,904; 355,189 and 373,732; and that the total enrolments were, respectively, 11,348,967; 11,655,190; 12,056,625 and 12,636,631. For the 2004 general election there were 423,993 enrolment transactions before the Rolls closed and 168,394 claims were lodged after they closed. For the 2007 election, when the changes made by the 2006 Act were in operation, there were 279,469 enrolment transactions before the Rolls closed and 100,370 claims lodged after they closed.
Day by day data on enrolment transactions in the period from the issue of the writs for the 1998 and 2001 general elections showed that the number of new claims and re‑enrolments increased daily during the then applicable seven day period (except on Saturday and Sunday) and 50 percent of claims were made on the last day.
With respect to the general election called for 21 August 2010, approximately 508,000 claims were received between the announcement of the election and the current deadlines of 8pm on the day of issue of the writs (for new enrolments) and 8pm on the day of the close of the Rolls (in the case of transfers and other applications). As already noted, a large number of claims were received after these deadlines but within a seven day period from the date of the writs, the date for the close of the Rolls before the 2006 Act.

[181]

The procedures in the challenged provisions of the 2006 Act apply to the ballot system, which is not an end in itself, but as stressed earlier in these reasons, the means adopted by the Parliament to make elections expressive of popular choice. Further, the Electoral Act is so drawn as to give these provisions substantive consequences for the exercise of the franchise.
The interrelation, already described, between the requirements for enrolment and those for voting entitlement is such that failure to comply with the former denies the exercise of the latter by persons otherwise enfranchised. In this way, the method of choice adopted by the legislation fails as a means to what should be the end of making elections as expressive of the popular choice as practical considerations properly permit. The requirements operate to achieve disqualification in the sense used in Roach.
The Commonwealth seeks to avoid this conclusion by first fixing upon the legal operation of the provisions of the 2006 Act. The Commonwealth points to the legal operation of the legislation in what it submits are but limited and exceptional cases. Persons who attain the age of 18 between the issue of the writs and polling day, or who are due to be granted citizenship in that period, will not be able to secure enrolment and entitlement to vote at the election unless they have made use of the early claim procedures in s 100 and s 99B respectively. With respect to transfers of enrolment, those who change their address in the month before the issue of writs and for whom the one month requirement (in s 99(2)) for the new residence expires between the three and seven day period will not be able to transfer their enrolment.
As to the first two of these three groups, the Commonwealth submits that their disqualification is the result of their failure to use the early claim procedures. The situation of the third group is said to be the inevitable consequence of any cut‑off date with respect to transfers.
However, with respect to these three groups of adult citizens there will be disenfranchisement, and arguments that these groups are but limited or exceptional cases are no answer unless the consideration upon which the Commonwealth relies supplies a substantial reason in the sense used in the reasons of the two majority judgments in Roach.
It is unnecessary to decide whether a substantial (and therefore sufficient) reason for disqualification of members of the three groups by this legal operation of the 2006 Act is the placing of permissible "cut‑off" points for the operation of the enrolment system. This is because of the scope of the practical operation of the legislation to disqualify the plaintiffs and large numbers of other electors. That many persons are stimulated to claim enrolment or transfer only upon awareness of the start of the particular electoral cycle is a phenomenon that was well apparent before the enactment of the 2006 Act. And, after all, there are estimated to be some 100,000 persons in the present position of the plaintiffs.
The Commonwealth submits that the practical operation of the 2006 Act upon persons such as the plaintiffs is met by the existence of the prior opportunity and obligation under s 101 to claim enrolment and transfer. Western Australia also draws a distinction between those eligible but excluded, despite doing everything open to them to exercise the franchise, and those, such as the plaintiffs, who fail to comply with the prescribed method of exercising the franchise. However, as explained earlier in these reasons, with particular reference to the requirement in s 101(7) that proceedings not be instituted where a late claim for enrolment or transfer has been made, the obligation to claim enrolment and transfer is designed to facilitate maximum participation in the electoral process of those otherwise qualified to vote, not to support disenfranchisement.
The position then is reached that the 2006 Act has the practical operation of effecting a legislative disqualification from what otherwise is the popular choice mandated by the Constitution. It is no sufficient answer, as Western Australia submits, that Roach is not reached because the disqualification does not apply to those who have promptly enrolled or claimed transfer of enrolment and only applies to those who have failed to do so, and this state of affairs is the product of permissible legislative choice. Rather, the relevant starting point is to ask whether, at the time when the choice is to be made by the people, persons otherwise eligible and wishing to make their choice are effectively disqualified from doing so.
If so, the question then becomes whether, as Gleeson CJ put it in Roach[179], there has been broken the rational connection necessary to reconcile the disqualification with the constitutional imperative, and whether, as Gummow, Kirby and Crennan JJ put it in the same case[180]:

[193]

The declaration made in this case on 6 August 2010 is supported by these reasons, which largely were prepared during the pendency of the general election held on 21 August 2010 and are expressed accordingly. The plaintiffs also sought mandamus. There is no requirement for such relief, given the evidence for the Commissioner to which reference has been made. The reasoning of this Court upon the issue of invalidity has binding force in the general sense described in Pape v Federal Commissioner of Taxation[192].
An order should now be made otherwise dismissing the application.
HAYNE J. Each plaintiff is an Australian citizen who has attained the age of 18 years. Each is entitled[193] to be enrolled on an Electoral Roll under the Commonwealth Electoral Act 1918 (Cth) ("the Act"). If enrolled, each is entitled[194] to vote at elections of senators for the State (or Territory[195]) in which she or he resides, and at elections of members of the House of Representatives for the Subdivision[196] in which she or he resides.
Each plaintiff is not simply entitled to be enrolled and vote. Each is bound[197] to claim enrolment on the appropriate roll. If enrolled, each is bound[198] to vote. Failure to perform either obligation is an offence[199].
Neither plaintiff made the requisite claim when obliged to do so. Neither plaintiff made that claim before the time fixed under the Act for making (in the case of the first plaintiff) a claim for new enrolment, or (in the case of the second plaintiff) a claim for transfer of enrolment, that would be given effect for the purposes of the federal election to be held on 21 August 2010. There are many who were eligible to enrol as electors but who did not make a claim for new enrolment, and many others who did not make a claim for transfer of enrolment, when they were bound to do so.
On Saturday, 17 July 2010, the Prime Minister announced that an election would be held on 21 August. Writs for the election were issued on the following Monday, 19 July 2010. More than 500,000 claims for enrolment were received after the election announcement on 17 July and before the start of periods fixed by s 102(4) and (4AA) of the Act as periods during which applications for new enrolment or transfer of enrolment may not be considered for the purposes of that election. Many others who were eligible to enrol did not make a claim before the relevant period began but made claims within seven days after the writs had issued.
The exact number of those who made claims after the cut‑off dates fixed by the Act, but within seven days after the writs had issued, is not known. The evidence filed for the Electoral Commissioner suggested that the number may be about 100,000, but went on to say that there is a "considerable margin of uncertainty in that estimate". Be this as it may, it may reasonably be assumed that there are many who were eligible to enrol, or required to transfer enrolment, who made a claim after the times fixed by the Act. It also may reasonably be assumed that many of these persons are young people who have turned 18 since the last election, and that many are young people who have moved since becoming enrolled for a particular Division. But as these reasons will later show, the fact that many affected by the cut‑off dates are young people is not relevant to the constitutional issues that arise.
The period fixed by s 102(4) of the Act, as the period during which claims for new enrolment may not be considered, begins at 8 pm on the date of the writ or writs for an election for the Division to which the claim relates, and ends at the close of polling at the election. The period fixed by s 102(4AA) of the Act, as the period during which claims for transfer of enrolment may not be considered, begins at 8 pm on the date of the close of the rolls (fixed by s 155(1) as the third working day after the date of the writ) and ends at the close of polling at the election. For the 2010 election, the periods began at 8 pm on Monday, 19 July 2010 (in the case of claims for new enrolment), and 8 pm on 22 July 2010 (in the case of claims for transfer of enrolment).
By a proceeding commenced in the original jurisdiction of this Court, claiming declaration and mandamus, the plaintiffs alleged that the provisions of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the 2006 Act"), by which what are now ss 102(4), 102(4AA) and 155 were inserted in the Act, are invalid. They alleged that an election conducted under the conditions prescribed by these provisions will not yield Houses of the Parliament that answer the description in ss 7 and 24 of the Constitution: "directly chosen by the people".
The plaintiffs submitted that, the present provisions of ss 102(4), 102(4AA) and 155 being invalid, the provisions of the Act as they stood before the introduction of the impugned provisions by the 2006 Act are engaged. As the Act stood before the amendments made by the 2006 Act, s 102(4) provided that claims for enrolment (whether new enrolment or transfer of enrolment) received during the period commencing at 8 pm on the day on which the rolls for an election close, and ending on the close of polling at the election, were not to be considered until after the expiration of that period. Section 155 of the Act, as it then stood, provided that the date fixed for the close of the rolls was seven days after the date of the writs. Each plaintiff made her or his claim less than seven days after the date writs were issued for the election to be held on 21 August.
Reduced to its essentials, the plaintiffs' argument was that cutting off consideration of claims for new enrolment or transfer of enrolment seven days after the date of the issue of the writs for a federal election is valid, but cutting off consideration of claims for new enrolment at 8 pm on the day the writs issue, and consideration of claims for transfer of enrolment at 8 pm on the third working day after the date of the writs, is not. An election conducted according to the former scheme was said to yield Houses of the Parliament "directly chosen by the people"; an election conducted according to the provisions introduced by the 2006 Act, it was said, will not. Accordingly, the plaintiffs claimed a declaration that the provisions of the 2006 Act which inserted ss 102(4), 102(4AA) and 155 of the Act (as now in force) are invalid, and mandamus directed to the first defendant, the Electoral Commissioner, requiring the Commissioner to consider the claim for new enrolment made by the first plaintiff and the claim for transfer of enrolment made by the second plaintiff.
On it being pointed out in oral argument that the submissions made by the plaintiffs appeared to entail that other provisions of the 2006 Act are invalid and that it is evidently undesirable that the Electoral Commissioner, required to conduct the election to be held on 21 August "according to law", should be left uncertain about the validity of those other provisions, the plaintiffs, without objection from the Commonwealth or the Electoral Commissioner, amended their claim to seek a wider declaration.
On 6 August, the Court made a declaration of the kind sought by the plaintiffs in their amended application. In my opinion, the proceedings should have been dismissed. What follows are my reasons for that opinion.
The reasons will be seen to comprise two distinct parts: first, identification of the relevant constitutional question and consideration of why that question should be answered against the plaintiffs, and second, consideration of the questions which the plaintiffs said should be addressed and why those questions should also be answered against the plaintiffs. The first hinges about the constitutional phrase "directly chosen by the people". The second focuses upon the notion of "reasonably appropriate and adapted".

[194]

As is apparent from what has already been said in these reasons, I would describe the relevant question as: whether the impugned provisions will yield Houses of the Parliament "directly chosen by the people". That description of the question depends upon a number of intermediate steps that should be exposed.
The Constitution provides for the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State to apply "as nearly as practicable" to elections of senators for the State (s 10) and elections in the State of members of the House of Representatives (s 31). Those provisions of ss 10 and 31 are engaged, in each case, "[u]ntil the Parliament otherwise provides, but subject to this Constitution". Section 51(xxxvi) gives the Parliament legislative power with respect to matters in respect of which the Constitution makes provision until the Parliament otherwise provides. That power is limited by the requirements of ss 7 and 24. Hence the question is whether the particular provisions made by ss 102(4), 102(4AA) and 155 travel beyond the limits of the power that is given by s 51(xxxvi) in its operation with respect to ss 10 and 31, because an election conducted in accordance with the Act, including those provisions, would not yield Houses that meet the constitutional description.
Much of the argument proceeded on the footing that the question just identified should be approached according to a two‑stage inquiry founded on what was said in the plurality reasons in Roach v Electoral Commissioner[200]. The Commonwealth, in its submissions, described those two stages in the following way. First, is there a "disqualification from what otherwise is adult suffrage"? That is, does the impugned law detract in some significant way from the existence of a franchise that is held generally by adult citizens? Second, is that disqualification not "for a substantial reason"? A reason was said[201] by the plurality in Roach to be "substantial" "if it be reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government". But, as the plurality further pointed out[202], "reasonably appropriate and adapted", in the context then under consideration, did not mean "essential" or "unavoidable".
It should be said immediately that this case is significantly different from Roach, and that there can be no automatic application of what was said in Roach to this case. Any application of what was said there must always be linked to constitutional bedrock[203]: the requirement that each House meet the constitutional description.
The decision in Roach concerned the validity of provisions disqualifying otherwise eligible persons from voting. There being a disqualification of persons who fall within the "people" identified in ss 7 and 24, the relevant question, identified in the plurality reasons[204] in Roach, was whether the disqualification was for a "substantial" reason. If there was no substantial reason for disqualifying from voting some of those who constitute "the people" by whom the two Houses of the federal Parliament are to be "directly chosen", it is evident that the law disqualifying those persons from voting went beyond the power given by s 51(xxxvi) in its operation with respect to s 30 (and thus s 8) that permits the Parliament to provide for the qualification of electors.
By contrast, the present case is not concerned with the qualification of electors. The starting point for the present proceedings is that each plaintiff is entitled to enrol and, if enrolled, is entitled to vote. This case concerns whether the impugned provisions impermissibly interfere with the exercise of those entitlements. And because the focus of attention is upon what is said to be an impermissible interference with the exercise of an entitlement, it is unhelpful and distracting to pose the issue, as the plaintiffs did, by using terms like "disenfranchise", "disentitle" or "exclude". Those terms obscure the fact that the plaintiffs had the right to enrol or transfer enrolment and were bound to do so, but through their own inaction submitted their claims after the dates fixed by the impugned provisions.

[195]

In framing the inquiries that are to be made in deciding whether an election conducted in accordance with the Act (and in particular, the impugned provisions) would not yield Houses that meet the constitutional description, care must be taken to avoid circular reasoning. Inquiries must not be framed in a way that dictates the answers that will be given to them. There are at least three different ways in which that danger emerged in this matter.
The first relates to the use of what was said in Roach. If the first of the inquiries made by the plurality in Roach is to be translated and applied in this case, it is important to recognise that the immediate issue is not just: "Can the plaintiffs enrol?" The question is more complex. It has a temporal element. This case asks whether the plaintiffs, who could and should have claimed enrolment or transfer of enrolment earlier, can have their claim considered after the time fixed by the Act for the cut‑off of consideration of claims. Terms like "disenfranchisement", "disentitlement" and "exclusion" mask the relevant temporal dimension to the question.
Secondly, the inquiries to be made, in deciding whether an election conducted in accordance with the Act would not yield Houses that meet the constitutional description, inevitably invite comparison between the impugned provisions and the law as it stood before the 2006 Act. But it is not to be assumed that the law, as it stood before the 2006 Act, was constitutionally required. The plaintiffs contended, and neither the Commonwealth nor Western Australia intervening disputed, that the law as it stood before the 2006 Act was constitutionally valid. But that does not demonstrate that the previous law was constitutionally required.
To assume that the previous law was constitutionally required would be to assume the answer to the fundamental question in issue. It would assume that answer because the law as it stood before the 2006 Act (which required the Electoral Commissioner to consider claims lodged up to seven days after the writs had issued) would be constitutionally required (as distinct from valid) only if such a system were necessary to yield Houses meeting the constitutional description. But that is the very question for decision in this case. And, of course, the same error is made if argument proceeds (as much of the plaintiffs' argument did) from the premise that the electoral legislation must permit (or may not deny or inhibit) enrolment at any time before the last reasonably available time before polling day. The premise (whether framed positively or negatively) is flawed: it assumes the answer to the question at issue in this case.
Thirdly, consideration of Ch I of the Constitution, and ss 7 and 24 in particular, shows that Ch I provides for a system of representative government. It will be necessary to return in some detail to that subject. For present purposes, the point to be made is that the expression "a system of representative government" must find its relevant content in the text and structure of the Constitution. The expression (which is not used in the Constitution) is a useful description of the general nature of the form of government for which the Constitution (and Ch I in particular) provides. But the expression cannot be erected as a premise for argument about what the Constitution permits or forbids if its content is derived from sources other than the Constitution.
Although, as explained earlier, the question of validity of the impugned provisions turns upon the content that is given to the expression "directly chosen by the people" it is desirable to begin by considering some of what has been said by this Court about the system of representative government established by the Constitution.

[199]

Recognition that the Constitution provides for a system of representative government underpinned the series of decisions[210] of the Court that culminated in Lange v Australian Broadcasting Corporation[211]. But in none of those cases was it necessary to examine whether the form of representative government for which the Constitution provides requires a particular form of electoral system. What was in issue in that series of decisions was the way in which the system of government worked. More particularly, did constitutional prescription of a system of representative government entail or imply a degree of freedom of communication that limited legislative power, or required some relevant development of the common law? In that context, the notion of representative government was relevantly and sufficiently expressed at a very high level of abstraction. For those purposes, its central conception is sufficiently articulated by the use of the constitutional expression "directly chosen by the people" in connection with the election of all members of both Houses of the legislature. No more particular question about the form of representative government, let alone the form of electoral system, needed to be considered in order to arrive at the conclusions expressed in that stream of authority.
In McGinty v Western Australia[212], this Court explored the content to be given to the term "representative government" when it is said that Ch I of the Constitution provides for such a system of government. All members of the Court concluded[213] that the Constitution contained no implication affecting disparities of voting power among the holders of the franchise for the election of members of a State Parliament. Several members of the Court examined what is conveyed by reference to "representative government" in connection with the federal Constitution.
Three members of the majority (Brennan CJ, Dawson and McHugh JJ) expressly discountenanced[214] the proposition that "representative democracy" or "representative government" is a valid premise for argument about the permissible content of the federal electoral system. The fourth member of the majority in McGinty, Gummow J, said[215] that "[t]o adopt as a norm of constitutional law the conclusion that a constitution embodies a principle or a doctrine of representative democracy or representative government (a more precise and accurate term) is to adopt a category of indeterminate reference". It was accepted that the "principle" or "doctrine" identified can at best provide a premise for argument about the form of electoral system that entails[216] "a wide range of variable judgment in interpretation and application". While it was said[217] that, of itself, this may not be open to objection, difficulties were foreseen as arising when "the wide range for variable judgment depends upon, or at least includes as a significant element, matters primarily or significantly of political weight".
One important source of the difficulty that attends using "representative government" (or "representative democracy") as a premise for reasoning in the present matter is that the Constitution says so little about the way in which representative government is to be implemented. As was observed in McGinty[218], the Constitution prescribes only four elements of representative government. First, there is the requirement of s 24 that members of the House of Representatives be directly chosen by the people of the Commonwealth (and of s 7 that senators be directly chosen by the people of the relevant State). Second, s 24 ties the number of members of the House of Representatives to the number of senators. Third, s 24 relates the number of members chosen in the several States "to the respective numbers of their people". And fourth, s 24 provides that "five members at least shall be chosen in each Original State". But beyond these last three provisions, the whole notion of representative government, as it is expressed in the Constitution, is found in the use of the phrase "directly chosen by the people" in both ss 7 and 24.
It follows, as Gummow J rightly pointed out in McGinty[219], that "[t]he phrase in s 24 'directly chosen by the people of the Commonwealth' is a broad expression to identify the requirement of a popular vote". It also follows, as Gummow J again rightly pointed out in McGinty[220], that the phrase used in s 24 (and I would add the like phrase used in s 7) is not to be dissected in a way that would give the words "chosen by the people" an operation distinct from s 24 (or s 7) as a whole[221].
Because the constitutional prescription of a form of representative government is as spare as it is, and so much is left for the Parliament to provide, it is inevitable that there are changes in the way in which the notion of representative government is given effect at the federal level. More particularly, the Parliament being given power to prescribe the method of choosing senators (s 9), and power to provide for electoral divisions (s 29), the qualification of electors for the House (s 30), and the law relating to elections for the Senate (s 10) and for the House (s 31), there can be change in each of those aspects of the features that go to make up a system of representative democracy. The limit on those powers lies in the overarching requirements of ss 7 and 24 that the Houses be "directly chosen by the people". But, as was said in Mulholland v Australian Electoral Commission[222], "care is called for in elevating a 'direct choice' principle to a broad restraint upon legislative development of the federal system of representative government".
In hindsight, the changes that have been made to the federal electoral system since federation may be described as evolutionary. It may be that hindsight would permit the observer to describe the changes as moving generally in a direction that represents a "development" of the particular form of representative government that is practised or established in Australia. It may also be observed that the trend of development has been to include more and more in the classes of persons who may, and now should, turn out to vote at federal elections. The introduction of a uniform federal franchise, the introduction of compulsory enrolment and then compulsory voting, the inclusion of Aboriginal Australians, first among those eligible and then among those bound to enrol and vote, and the lowering of the minimum age for enrolment from 21 years to 18 years, can all take their place in such an analysis.
All of these developments demonstrate the correctness of the observation[223] "that representative government is a dynamic rather than a static institution and one that has developed in the course of [the twentieth] century". And it is through the Parliament's power to legislate with respect to these matters that "the Constitution continues to speak to the present and allows for development of the institution of government by changes which may not have been foreseen a century ago or, if foreseen by some, were not then acceptable generally"[224].
Neither of these observations, however, permits, let alone requires, the further conclusion that it is the Constitution which has "developed" or that the concept of "representative government" has developed or evolved into a constitutional norm. A conclusion of that kind could be founded only in the text or structure of the Constitution. And because the very premise for the observed processes of development is that the Constitution is silent about those matters, leaving it to the Parliament to undertake the processes of development, that further step cannot be taken. There is no textual or structural foundation for it. Rather, as Gummow J rightly said[225] in McGinty:

[201]

"Representative government" was regarded by many nineteenth century writers as "the Ideally Best Form of Government"[226]. Their works were familiar to the framers of the Constitution and to those in the Parliament who debated the Bill for what became the Commonwealth Electoral Act 1902 (Cth) ("the 1902 Act"). The enduring controversies about electoral systems (reflected, for example, in the application of the Hare‑Clark system in Tasmania) as well as the course of debates in the Parliament in connection with the Bill for the 1902 Act show, however, that no one writer's views about representative democracy were seen as commanding the field. It is not right in those circumstances to see the provisions of Ch I of the Constitution, with their important but spare specification of the system of government, as embracing the views of any one of those writers, be it John Stuart Mill or anyone else. To read Ch I in that way denies the evident constitutional intention to permit the Parliament to decide many important questions about the structure and content of the electoral system without constitutional restriction beyond the requirement that each House be directly chosen by the people. To assume otherwise is, as Gibbs J said[227] in McKinlay, to beg the question and ignore history, or it is, as his Honour also said[228], to add to the Constitution's provisions "new doctrines which may happen to conform to our own prepossessions".
Consideration of whether each House, if elected according to mechanisms that include the impugned provisions, will meet the constitutional requirement necessitates examination of what is meant by "directly chosen by the people". It also requires consideration of the place that the relevant cut‑off dates have in the whole scheme of arrangements made by the Act for enrolment and voting. It will be necessary to say something further about both of those matters. Before doing that, however, I should identify some features of the plaintiffs' arguments.

[202]

As already noted, the plaintiffs' argument was directed to establishing first, that the cut‑off dates "disqualified" them from exercising their franchise as adult Australian citizens, and second, that the "disqualification" was for no "substantial" reason. The plaintiffs went so far as to submit that their "disqualification" was properly described as "capricious", but the weight of their argument was placed on the proposition that the "disqualification" was not reasonably appropriate and adapted to the end of yielding Houses of the Parliament that would meet the constitutional description of "directly chosen by the people".
The plaintiffs accepted that the Act could prescribe a cut‑off date for consideration of claims for new enrolment and for transfer of enrolment. That is, the plaintiffs accepted that prescription of a cut‑off date could be a measure reasonably appropriate and adapted to the end identified, and further accepted that the particular prescriptions made after the 1983 election were of that kind. The plaintiffs' acceptance of those propositions reveals features of their arguments which should be identified.
First, their claim that the cut‑off provisions made by the 2006 Act are invalid does not depend upon how many are affected. The facts agreed by the parties did not establish that allowing a longer period for last minute compliance necessarily results in fewer missing the cut off, and more being correctly enrolled. At the last election before the 2006 Act introduced the impugned provisions, 168,394 people lodged claims for enrolment and transfer after the close of rolls; in 2007, the equivalent number was about one‑third smaller: 100,370.
Secondly, prescription of any cut‑off date before polling day will inevitably mean that some will miss the cut off. The Court was enjoined, more than once, to recognise that it is human nature for some (it was said especially the young) to leave compliance with obligations to the last minute. And if that is right, some, like the plaintiffs, will leave compliance until after the time appointed, whatever that time may be.
It follows that, when the plaintiffs submitted that the impugned provisions are not reasonably appropriate and adapted to serve an end consistent or compatible with the maintenance of the constitutionally prescribed system of government, the "end" that the plaintiffs identified must be expressed in such a way that it connotes maximum participation in the poll by those who are eligible to be enrolled. As will be seen, however, there is no foundation for identifying maximum participation as an element of the constitutionally prescribed system of government.

[203]

The phrase "directly chosen by the people", when used in ss 7 and 24 of the Constitution, conveys a number of ideas. It is neither necessary nor appropriate to attempt to explore all aspects of the meaning that is to be attributed to the phrase.
It is not to be doubted, however, that consideration of whether members and senators are "directly chosen by the people" requires examination of the laws that govern not just the franchise, but also enrolment to vote, and the exercise of the right of an enrolled elector to cast his or her vote. Roach was a case about the first kind of issue: laws that govern the franchise, or what s 30 of the Constitution calls "the qualification of electors". This case is not. This case concerns enrolment to vote.
The members of each House of the Parliament are elected on a franchise which, subject to exceptions that are not engaged in respect of the plaintiffs, is a universal adult franchise embracing all "the people of the Commonwealth" spoken of in s 24, and all "the people of the State" referred to in s 7. That some who are enrolled to vote, and therefore entitled and bound to vote, do not cast a ballot at an election does not deny that the elected members of each House of the Parliament are "directly chosen by the people". That some who are bound to enrol do not enrol, and therefore do not vote, does not deny that the members of each House are "directly chosen by the people". The plaintiffs' argument was that the absence from the appropriate roll of some, who (belatedly) claimed their entitlement to be on that roll, does mean that the members of each House are not directly chosen by the people. Such a conclusion would be sharply at odds with the recognition that neither the failure to vote by some entitled to vote, nor the failure to claim enrolment by some entitled to enrol, leads to that conclusion.
History teaches that, in some countries, registration and voting systems have been devised and administered in ways that have systematically disadvantaged particular groups in the society. But the plaintiffs' complaint in the present case was not of that kind. Rather, the plaintiffs' complaint was directed to the consequences that follow from the impartial administration of the Act in accordance with its terms. And it was a complaint that hinged about the observation that they, and others in like case, cannot cast a vote in this election, in the Division in which they live, because they have not complied with their statutory obligations. They observed that these consequences of non‑compliance with the Act fall chiefly upon the young. They did not say, however, that that fact leads to any relevant constitutional consequence or engages any relevant constitutional principle.
The plaintiffs' complaint directed attention to what would happen in connection with this election, as opposed to what was lawfully permitted and required to happen in connection with the election. That is, it was said to be constitutionally significant that tens of thousands of persons, who were eligible and required to enrol and vote, had not taken the steps necessary to enable them to vote, in the Division in which they reside, at the election.
A necessary step in the plaintiffs' argument that the impugned provisions are invalid was to observe that they, and others in like case, had only a very short time to respond to the stimulus of an election announcement by claiming enrolment, or a transfer of enrolment. They submitted that they should have had a longer time to respond to that particular stimulus. That there were other stimuli to enrolment was dismissed as not to the point. Making it an offence not to enrol forthwith was treated as not a sufficiently effective stimulus. Recognition that few federal elections have been called without a great deal of prior media discussion and speculation about what date will be fixed was treated as irrelevant. The plaintiffs' submissions hinged about the proposition that nothing but a Prime Ministerial announcement fixing the date for an election could sufficiently stimulate those who had not enrolled or transferred enrolment to do what they were legally bound to do.
What will in fact happen at this election (as distinct from what not only could but should have happened, had the Act been obeyed) bears upon whether each House is "directly chosen by the people" only if that phrase directs attention to the number of persons who actually vote at an election and requires that that number be as large as possible. Or, restating the same proposition in words used in the course of argument, what will happen at this election bears upon satisfaction of the constitutional requirements only if ss 7 and 24 at least connote, if not require, that there be "maximum participation" by the people. There are several reasons why that view of "directly chosen by the people" should not be adopted.
First, it is necessary to recognise the distinction between factual participation of "the people" in an election, and the legal opportunity for "the people" to participate in an election. The former idea requires consideration only of what has occurred, or will likely occur, at one or more particular elections. It attaches no significance to the observation that the failure to enrol is an offence. By contrast, the latter requires examination of the legal framework within which those events occur. In particular, it requires examination of the legal and practical operation of the relevant statutory provisions. The former is the field of political science and behavioural analysis. The latter is the field of constitutional law.
Second, it is necessary to recognise that compulsory voting was not, and was not seen as, a necessary corollary of ss 7 and 24 generally, or of the particular constitutional description of the Houses as "directly chosen by the people", when the Constitution first took effect. Compulsory voting was not introduced until 1924[229]. When introduced, the validity of compulsory voting was challenged but upheld by this Court in Judd v McKeon[230]. The introduction of compulsory voting was seen by all members of the Court in that case[231] as a matter for the Parliament to decide, not as a matter of constitutional necessity. And of course none of the transitional electoral provisions picked up from the States and applied by ss 10 and 31, "[u]ntil the Parliament otherwise provide[d]", required compulsory voting or compulsory enrolment.
Third, recasting the plaintiffs' argument as a complaint that the impugned provisions unreasonably deny them the opportunity to enrol and vote puts all the weight of their argument on the content that is given to the word "unreasonably". But whatever content is given to that word, the proposition assumes, without demonstration, that the electoral legislation must permit (that is, it must not deny or inhibit) enrolment at any time before the last reasonably available time. And as explained earlier in these reasons, that premise is flawed because it assumes the answer to the question at issue. Moreover, the notion that there was an "unreasonable" denial of the opportunity to enrol when the plaintiffs (and others in like case) have had not just the opportunity, but the obligation, to do so forthwith upon becoming entitled to claim enrolment or transfer of enrolment is, on its face, logically and legally unsound. It could have a legal basis only if the Constitution requires maximum participation, and there is no textual or other sufficient foundation for that conclusion.
Only if the system of representative government for which the Constitution provides has now changed or developed into either a system where compulsory enrolment and voting are constitutionally essential elements of the system, or a system where the Parliament must maximise the opportunity to enrol and vote, would the necessary premise of the plaintiffs' argument (that the Constitution requires that the electoral law must facilitate and promote maximum participation by the people) be made good. The only textual way in which that could be done would be by reading "directly chosen by the people" in ss 7 and 24 as now requiring maximum participation, or by drawing some wider implication from the observation that those provisions require a system of representative government. For the reasons given earlier in discussing what is meant by "representative government", that step cannot and should not be taken. What has changed and developed since federation is the way in which successive Parliaments have exercised the power given by the Constitution to give practical operation to a system of representative government of which only the broadest outlines are fixed by the Constitution. The constitutional requirements have not altered. The provisions of ss 7 and 24, whether generally or in their use of the phrase "directly chosen by the people", have not taken on any different, or more prescriptive, meaning as a result of the various steps taken by successive Parliaments to adjust the electoral system.
That is not to say, of course, that maximum participation in the electoral process cannot readily be seen as a desirable civic value and as a worthy legislative objective. But whether and to what extent it is pursued is a choice which the Constitution confides to the Parliament. It is through legislation of the Parliament that the democratic system of government has developed, not by attributing a new and different meaning to the exiguous constitutional text.
There is no constitutional foundation for the plaintiffs' arguments. Neither s 7 nor s 24, with their use of the expression "directly chosen by the people", requires the Parliament to establish or maintain an electoral system which will maximise the participation of eligible electors. Neither s 7 nor s 24, alone or in combination with the provisions of Ch I, or the Constitution more generally, provides for a system of representative government in which there can be no fixing of the rolls of eligible electors at, or very soon after, the issue of the writs to begin the electoral process. An election conducted in accordance with the impugned provisions would yield Houses of the Parliament "directly chosen by the people".
Although these are reasons enough to conclude that the plaintiffs' proceeding failed, it is as well to go on to consider some more particular aspects of their arguments. As noted earlier in these reasons, the plaintiffs put their case by reference to the two inquiries described in Roach: is there a disqualification from what otherwise is adult suffrage; is the disqualification not for a substantial reason?
As already explained, there is no disqualification from what otherwise is adult suffrage. The plaintiffs were not barred or inhibited from exercising their entitlement to enrol and vote. Through their own inaction and failure to perform their obligations they claimed enrolment or transfer of enrolment after the due date. They left their claim until after the "last minute". There being no disqualification, the second question posed in Roach, about no substantial reason, does not arise. It is, nonetheless, desirable to consider it. To do that, it is necessary to make a more detailed examination of the historical and legislative context in which the issues in the present litigation are tendered for decision.

[204]

Since the enactment of s 8 of the Commonwealth Electoral Act 1911 (Cth) inserting s 61C in the 1902 Act, enrolment to vote at federal elections has been compulsory. As enacted, s 31 of the 1902 Act provided that all persons qualified to vote at a federal election were qualified to have their name on the appropriate roll. The Commonwealth Franchise Act 1902 (Cth) provided (with some exceptions that need not be considered) that all British subjects resident in Australia for six months continuously, who had attained the age of 21 years, and whose names were on an Electoral Roll, were entitled to vote. Although enrolment was not compulsory in 1902, the first federal Electoral Rolls saw more than 95 per cent of eligible voters enrol. And in some States the numbers on those first federal Electoral Rolls exceeded the numbers on the State Rolls.
Compulsion to enrol necessarily has two consequences. First, a time for compliance with the obligation must be fixed. Second, consequences (usually penal) must be identified as following from failure to perform the obligation.
Section 61C of the 1902 Act, as inserted by the 1911 Act, obliged every person entitled to be enrolled as an elector, and who was not so enrolled, to fill in and sign a form of claim and "forthwith" send or deliver it to the proper officer. Regulation 6B(2) of the Electoral and Referendum Regulations 1912 (Cth) provided that failure to send or deliver a claim within 21 days of becoming entitled to enrol was an offence punishable by a penalty not exceeding £2 or, in the case of a first offence, not exceeding 10 shillings. As will later be explained, the Act, as it now stands, makes generally similar provisions fixing the time by which the obligation to enrol is to be performed, and fixing a penalty for failure to comply with the obligation. The plaintiffs' case is that, despite the legislature validly obliging enrolment forthwith, and providing for penal consequences if that obligation is not performed, the legislature not only must provide a further opportunity for performance of the obligation to enrol, but also must provide for that opportunity to be taken up after an election has been announced and the writs that commence the electoral process have been issued.
Since 1973[232], subject to some exceptions that are not immediately relevant, all Australian citizens who have attained 18 years of age have been qualified for enrolment. If qualified for enrolment, a person who lives at (and for the preceding period of one month has lived at) an address in a Division is entitled[233], in respect of residence at that address, to have his or her name placed on the roll for that Division. Special provision is made in the Act for eligible overseas electors[234], the spouses and children of eligible overseas electors[235], Norfolk Island electors[236] and itinerant electors[237], but none of those provisions need be examined here. The Act allows for provisional claims for enrolment by applicants for citizenship[238] and for claims for age 16 enrolment[239], but again, nothing turns directly on the detail of those provisions.
A person who is entitled to enrolment for a Division is bound[240] "forthwith" to fill in and sign a claim and send or deliver that claim to the Electoral Commissioner. That obligation extends to those eligible for enrolment for the first time and to those who, because of a change of residence, are bound to claim transfer of enrolment. Apart from those whom the Act describes as qualified Norfolk Islanders, every person entitled to have his or her name placed on the roll for any Division, whether by way of enrolment or transfer of enrolment, and whose name is not on the roll upon the expiration of 21 days from the date upon which that person became so entitled, is guilty of an offence[241] unless he or she proves that non‑enrolment is not a consequence of failure to make a claim. A person enrolled for a Division who has changed his or her place of living to another address in the same Division, and has lived at the new address for one month, but does not give written notice of the new address within 21 days of the end of the one month period, is guilty[242] of an offence.
Submission of a claim for enrolment or transfer precludes[243] prosecution for an offence of not making a claim, if the offence was committed before the claim was made.
Enrolment governs more than the entitlement of individuals to vote. Distributions of each State and Territory into Electoral Divisions are made by reference to the numbers of electors enrolled in each Division, and the average divisional enrolment in relation to the relevant State or Territory. Each month, the Electoral Commissioner must[244] ascertain the number of electors enrolled in each Division, determine the average divisional enrolment in respect of each State and Territory, determine the extent to which the number of electors enrolled in each Division differs from the average divisional enrolment, and cause a statement of the matters so ascertained and determined to be published in the Gazette. Whenever it appears to the Electoral Commission, from those statements in the Gazette, that more than one‑third of the Divisions in a State are, and for more than two months have been, malapportioned, a redistribution must commence[245].
So far as the enrolment of individual electors is concerned, several observations are to be made about the Act. First, Pt IX of the Act provides for objections to enrolment of a person, and Pt X for review of decisions to reject a claim for enrolment or to remove a person's name from a roll. A decision to remove or omit a person's name from a roll is also amenable to judicial review under s 75(v) of the Constitution[246].
A decision to accept a claim for enrolment, or transfer of enrolment, cannot be challenged except by the process of objection under Pt IX of the Act. But, since the 2006 Act, the Electoral Commissioner has been forbidden[247] to remove an elector's name from a roll, as a result of the objection process, during the period between 8 pm on the date of the writ for an election and the close of the polling at the election. That is the same period as is now fixed by the Act as the period during which claims for new enrolment cannot be considered. Before the 2006 Act, the prohibition on removing an elector's name was also tied to the period during which claims for new enrolment could not be considered: the period beginning seven days after the date of the writs. Further, s 361(1) of the Act provides that, on an Electoral Petition to the Court of Disputed Returns, "the Court shall not inquire into the correctness of any Roll". It follows, so the Commonwealth submitted, that alleged deficiencies in the Electoral Rolls cannot be agitated, after the election, in a challenge to the result. It also follows, however, that questions about significance of enrolment have a wider focus than the position of any particular individual. It is necessary to consider not only the effect of the Act on individuals, but also the place that the Electoral Rolls play in the conduct of an election as a definitive statement of entitlement to vote.

[205]

Between 1902 and 1983, a person's name could not be added to an Electoral Roll (whether pursuant to a claim to new enrolment or a claim to transfer enrolment) after the writs had issued[248]. Until 1983, there was a practice, perhaps even a convention[249], that writs for an election would not issue until at least seven days after the public announcement of an intention to call an election. Yet such a practice or convention appears not to have been always followed. The parties in the present matter agreed that, in 1931, only two days elapsed between the announcement of an election and issue of the writs and that, in 1949, only five days elapsed. And the practice, or convention, was one which depended upon there being an announcement of intention to dissolve the Parliament (and call an election) before the tendering of advice which would lead to the Governor‑General in Council causing writs to be issued for a general election of members of the House of Representatives. Section 5 of the Constitution permits the Governor‑General "by Proclamation or otherwise, [to] prorogue the Parliament, and ... in like manner dissolve the House of Representatives". Section 32 of the Constitution requires that the writs issue "within ten days ... from the proclamation of a dissolution" of the House. But s 32 does not preclude issuing the writs sooner than that outer limit of 10 days. Section 12 permits the Governor of any State to cause writs to be issued for elections of senators for the State. And this was done in every State, for this election, on 19 July 2010, the same day as writs were issued for the election of members of the House of Representatives.
In 1983, writs for the election were issued on the day after the election was announced. As a result, those who, at 6 pm on that day, were in default of their obligation to enrol, or seek transfer of their enrolment, could not have their claims to enrolment on the relevant federal Electoral Roll considered. Their claims to enrolment on the relevant State Roll, however, were allowed. Proceedings were brought in this Court[250] claiming that because the persons concerned had the right to vote at elections for the more numerous House of the Parliament of a State, s 41 of the Constitution required that they not be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. The Court held (Murphy J dissenting) that the right to vote in s 41 was that possessed under a State law when the federal franchise was established, and that s 41 does not confer a right to vote in a federal election on any person who, from time to time, has the right to vote at a State election. Accordingly, the applications were dismissed.
Arguments of the kind advanced in this matter, though available in R v Pearson; Ex parte Sipka, were not put to or considered by the Court in that case. Rather, Sipka was decided without any direct challenge to the Commonwealth's submissions that the then provisions of the Act providing for closure of the rolls on the day of issue of the writs were "authorised by ss 9, 10, 29, 31 and 51(xxxvi) of the Constitution [and] render[ed] effective those provisions of the Act providing for an electoral roll and for enrolment"[251]. Nor was there any direct challenge to the further argument on behalf of the Commonwealth[252] that "[a] provision which closes off the roll by reference to the date of issue of the writs for an election facilitates the exercise of the franchise".
Just as the decision in Sipka does not foreclose the plaintiffs' arguments in this case, the longevity of the provisions which gave rise to the litigation in Sipka does not preclude the plaintiffs from success in this litigation. Nor is it necessary for the plaintiffs to assert that the arrangements about closing of the Electoral Rolls which existed between 1902 and 1983 were constitutionally invalid.
While the better view is that those arrangements were constitutionally valid, they were administered in a context where, at least for the most part, controversies of the kind that now arise could not have been tendered for consideration by this Court as a "matter". That is not to say that the constitutional validity of the arrangements that persisted during those years up to the early 1980s depended upon the existence of some imperfectly observed political practice or convention about when the proposal to hold an election would be announced. It is to observe only that the factual circumstances which underpin the claims brought by these plaintiffs did not arise, and did not arise because of the way in which electoral announcements were made. It is further to be observed, however, that, if the present election had been announced one week before it was, but writs had been issued on the day they were, the plaintiffs would presumably accept that the impugned provisions governing consideration of claims for new enrolment or transfer of enrolment would be valid in their operation.
Following the 1983 election, the Act was amended[253] to provide that the period in which a person's name could not be added to the roll began at 6 pm on the day the rolls close, and that the rolls closed seven days after the issue of the writs. In 1995, the cut‑off time of 6 pm was changed[254] to 8 pm.
Between the 1983 election and the enactment of the 2006 Act there was debate, from time to time, about what provision should be made for cutting off consideration of claims for new enrolment, or claims for transfer of enrolment, once an election had been called. Participants in the debate appealed to a variety of considerations in aid of particular proposals. Those considerations included, but were not limited to, questions of the "integrity" of the rolls, the "accuracy" of the rolls and what would be the "more democratic" solution. And the proposals were politically controversial. The 2006 Act was enacted over the opposition of the then opposition party and some third party and independent senators.

[206]

It is not necessary, however, to trace the detail of the controversy, the arguments that were deployed in the course of the debates in the Parliament, or the extended debates that took place in Committees of the Parliament, especially the Joint Standing Committee on Electoral Matters ("JSCEM"). Nor is it useful to pause to examine the way in which words like "integrity" or "accuracy" can or should be used in describing the state of the Electoral Rolls. Two points are presently important.
First, there have been essentially three different forms of statutory regulation of federal electoral enrolment since federation. From federation to 1983, and thus both before and after enrolment was made compulsory in 1911, no claim for new enrolment or transfer of enrolment could be considered if made after the writs for an election were taken to have issued. Between 1983 and 2006, claims for new enrolment and transfer of enrolment could be considered if made within seven days after the writs for an election were issued. Since 2006, claims for new enrolment could not be considered if made after the day on which the writs were issued, and claims for transfer of enrolment could not be considered if made later than the third working day after the date of the writs.
Secondly, to the extent to which it is necessary or appropriate to examine why the 2006 Act, in the respects relevant to this matter, was framed in the way it was, several points are to be noticed.
Because the changes made by the 2006 Act were politically controversial, debate about them tended to focus upon what was seen as politically persuasive. Issues about the "integrity" or "accuracy" of the rolls had been examined by the JSCEM in its reports on the federal elections held in 1996 and 2004 and in other more particular reports of the JSCEM published in May 2001 and October 2002. The issues were also examined in submissions and reports by the Australian National Audit Office and the Australian Electoral Commission.
The central focus of much of what was said in those documents was on enrolment fraud. But reference was also often made to the costs and difficulties associated with the facts that many new and existing electors were not making enrolment claims when they should, but were delaying them to the time when an election had been announced. In the JSCEM report on the conduct of the 2004 federal election ("JSCEM 2004 Report"), published in September 2005, the Committee noted[255] that 60.5 per cent of enrolment transactions that had occurred during the close of rolls period would not have been required if electors had made the necessary claims when required to do so. The Committee expressed[256] the belief that "the seven day close of roll period for Federal elections actually encourages electors and potential electors to neglect their obligations in respect of enrolment, believing that they can play 'catch up' during the close of rolls period". The Committee noted[257], with what it described as "a high degree of concern", that "a significant number of electors" had not updated their enrolment details despite contact by the Australian Electoral Commission ("the AEC") reminding them of their obligations. The Committee continued[258]:

[215]

This being the history of the matter, it is not surprising that neither the Explanatory Memorandum, nor the Second Reading Speech, for the Bill that became the 2006 Act canvassed in any detail the arguments for the alterations that were to be made by the proposed law. Those arguments had already been extensively examined. Rather, the Explanatory Memorandum proceeded by reference to a Government Response to the JSCEM 2004 Report, and the Second Reading Speech said little more than that the Bill "contains reform measures arising from some of the government supported recommendations" of that report.
Neither the Explanatory Memorandum nor the Second Reading Speech contains any, or at least any elaborated, discussion of the mischief to which the Bill was directed. Nonetheless, read in the context of the JSCEM 2004 Report, and the Government Response to that report, it is evident that, in respects relevant to the present matter, the Bill was intended to provide what the Commonwealth described in its submissions as "prophylactic" measures against fraud, while reminding electors, as the JSCEM 2004 Report said[261], "that the responsibility for ensuring that the electoral roll is updated in a timely manner rests with them".
The plaintiffs submitted that there was no "substantial reason for abrogating the seven day period" provided by the 1983 legislation and that there was "no evidentiary basis for what in fact occurred" (scil. the changes made by the 2006 Act). The plaintiffs necessarily stopped short of submitting that the views stated in the JSCEM report that are set out above were not held by the majority of the members of the Committee. The plaintiffs necessarily stopped short of submitting that what was said in the report masked other, ulterior, and impermissible purposes. The plaintiffs necessarily stopped short of such submissions because there was no foundation in the material for either submission. But what then was the legal proposition on which the plaintiffs relied when they spoke of no "evidentiary basis" and no "substantial reason"?
Shorn of forensic flourishes, the plaintiffs' argument must be understood as being that the impugned laws were not reasonably appropriate and adapted to serving an end consistent or compatible with the maintenance of the constitutionally prescribed system of government. So understood, the plaintiffs' argument proceeded by asserting that the impugned provisions were not reasonably appropriate and adapted to preventing electoral fraud, because there was no demonstration that there had been any significant incidence of fraud before the 2006 Act, and (perhaps) because there were other means of preventing fraud that were consistent with maintaining the seven day period fixed by the 1983 Act. And the plaintiffs then coupled those assertions with the further proposition (already noticed in these reasons) that the "practical operation" of the impugned provision was to "disenfranchise" the plaintiffs and others in like case. It is convenient to consider the plaintiffs' argument in steps: first, the "practical operation" of the impugned laws; second, the question of mischief and, in particular, electoral fraud; and third, the significance of the availability of other measures.

[216]

Identifying the practical operation of the impugned laws as disenfranchising the plaintiffs and others lay at the very centre of the plaintiffs' case. I have already pointed to the difficulties that follow from speaking of the plaintiffs as having been disenfranchised. Those same difficulties inhere in the assertion that the practical operation of the provisions cutting off consideration of claims for new enrolment and transfer of enrolment "disenfranchises" the plaintiffs. And the difficulties encountered are not just verbal, they are substantial.
The complaint which the plaintiffs make about the so‑called "practical operation" of the impugned provisions depends upon other, related provisions of the Act having been disobeyed by the plaintiffs. If the plaintiffs had performed their obligations under the Act when they were bound to do so, the impugned provisions would not be engaged. Thus the "practical operation" of the law to which the plaintiffs point is an operation that depends upon the extent to which other provisions of the law of which the impugned provisions form a part have been disobeyed. This asserted understanding of the "practical operation" of a law is entirely novel and should not be adopted. The constitutional validity of the impugned provisions cannot turn upon the extent to which related statutory obligations have been disobeyed.
No less importantly, as has already been explained, the assertion that the practical operation of the impugned provisions disenfranchises the plaintiffs necessarily depends on first adopting one, if not more than one, of the three forms of question begging premises identified earlier in these reasons. The assertion about practical operation depends (at least in part) upon masking the relevant temporal dimension of entitlement to enrol. The assertion assumes that there is a constitutional requirement that last minute enrolment be permitted. The assertion then seeks to justify that assumption by an appeal to what are assumed, rather than demonstrated, to be constitutional norms of "representative government". The assumptions dictate the answer to the particular question that arises in the proceedings.

[217]

The relevant provisions of the 2006 Act were proposed in the JSCEM 2004 Report, not just to prevent fraud, but also to encourage timely observance of the obligations to enrol. It follows that to focus only on questions of fraud prevention ignores another intended purpose of the legislation. That other intended purpose cannot be discarded from consideration as irrelevant. It cannot be dismissed as an untenable view.
Even if attention were to be confined to questions of fraud prevention or inhibition, the plaintiffs' argument (that because there was no demonstration of any significant incidence of fraud before the 2006 Act, the impugned provisions are not reasonably appropriate and adapted to an end of fraud prevention) is logically and legally flawed. The logical flaw is evident. The absence of proven instances of fraud does not demonstrate that no new or different step can or should be taken to prevent it. Whether any further step should be taken is a matter of judgment. Nor does pointing to the existence of other means of preventing fraud entail that no new or different step can or should be taken. Again, the question is one for judgment.
The legal flaw in the reasoning is of the same kind as has already been observed in connection with the question of practical operation. The plaintiffs' arguments about what is reasonably appropriate and adapted depended upon one or more of the question begging premises that have been identified.
It will be recalled that the plaintiffs' argument denied that the impugned provisions are reasonably appropriate and adapted to serving an end consistent or compatible with the maintenance of the constitutionally prescribed system of government. This was then particularised by saying that the impugned provisions were not reasonably appropriate and adapted to an end of fraud prevention and by saying that no other relevant end was demonstrated. But the plaintiffs accepted that provisions for an Electoral Roll, the details of which were to be fixed at a date before polling day, are reasonably appropriate and adapted to an end consistent with the maintenance of the constitutionally prescribed form of government. That acceptance necessarily depends on accepting the argument put by the Commonwealth in Sipka, noted earlier, that a provision which closes off the rolls by reference to the date of issue of the writs for an election facilitates (and, I would add, does not impede or detract from) the exercise of the franchise. To say, as the plaintiffs did, that a provision closing the rolls seven days after issue of the writs is valid, but a provision closing the rolls on the day of the writs (or in the case of transfers, three days after the writs) is not, necessarily proceeds from a premise that provision must be made for last minute enrolments: "last minute" not just in the sense of after the time fixed by the Act for performance of the obligation to enrol, and proximate to an election, but "last minute" in the sense of after the announcement of the election. The premise begs the question. The premise was not, and cannot be, established.

[218]

The plaintiffs' references to available alternative measures took two distinct forms. First, as already noted, much of the plaintiffs' argument proceeded by comparison with the system of allowing seven days for lodging claims for enrolment or transfer of enrolment that had been introduced in 1983. But, as already explained, those comparisons are significant only if the unstated premise for the argument is that there must be legislative provision enabling last minute enrolments.
The second form of reference to alternative measures was made in connection with the argument that fixing cut‑off times earlier than those fixed in 1983 was not necessary for elimination of fraudulent practices. In this connection, reference was made to what the Australian Electoral Commission has done in two programs: a Continuous Roll Update or "CRU" program and the development of a computerised roll management system known as "RMANS". In each year since 1999-2000, many millions of dollars have been spent by the Australian Electoral Commission on Electoral Roll Review and Continuous Roll Update activities. The latter form of activity required data matching, using RMANS, between entries on the Electoral Rolls and other data held by other government departments or agencies.
No doubt processes of data matching can help to avoid registration of fraudulent enrolments. It is an altogether different question (not addressed in the evidence or in argument) whether those techniques can be usefully engaged in dealing with a large number of last minute claims for enrolment. It is this latter question which is important when considering the impugned provisions. (In that regard it must be remembered that the Commission dealt with more than 500,000 claims lodged between the announcement of the 2010 election and the cut‑off dates fixed according to the impugned provisions.) To make good the plaintiffs' proposition, it would be necessary to demonstrate that allowing the Australian Electoral Commission a little more time for checking last minute enrolments than was available under the 1983 provisions would not make, and could not be supposed to make, any contribution to avoidance of fraud. The general references that the plaintiffs made to processes of continuous roll updating and the availability of data matching techniques and facilities fell well short of demonstrating that proposition.
Be this as it may, it must also be recalled that the JSCEM 2004 Report made two points: one about preventing fraud and one about trying to encourage better compliance with existing requirements by shortening the time for last minute enrolments. In that latter regard it may be noted that, despite Electoral Roll Review and Continuous Roll Update activities by the Australian Electoral Commission, the estimated number of eligible persons not enrolled generally increased during the period between June 1999 and December 2009[262]. The parties agreed that, at the close of rolls for the 2004 federal election, about 91.5 per cent of eligible voters were enrolled. At the close of rolls for the 2007 election (after the amendments made by the 2006 Act had come into force) the proportion enrolled had risen to about 92.3 per cent of eligible voters. By 31 December 2009, that proportion had dropped to about 90.9 per cent. It was estimated that, at 31 December 2009, nearly 1.4 million eligible persons were not enrolled. For the 2001, 2004 and 2007 elections, the numbers "missing" from the rolls were about 0.9 million, 1.2 million and 1.1 million (respectively). Thus, while the particular number missing varied from election to election (and actually dropped after the amendments made by the 2006 Act) the general trend over the 10 years between 1999 and 2009 was for the number missing to increase, and for the percentage of eligible electors who were enrolled to diminish.
The plaintiffs did not demonstrate that shortening the time for last minute enrolment could have no effect on the general level of compliance with the obligation to enrol, or transfer enrolment, forthwith upon becoming entitled to enrol, or required to transfer enrolment. Yet that proposition was a necessary step to making good the plaintiffs' contention that the 2006 Act, so far as now relevant, was not reasonably appropriate or adapted to serving an end consistent or compatible with the maintenance of the constitutionally prescribed system of government.
The plaintiffs' appeal to the availability of other measures depended upon other, more deep‑seated errors than any failure of factual demonstration. In terms, the argument was presented as being at least akin to an argument of proportionality. And it will be recalled that, in the plurality reasons in Roach, it was said[263] that "as remarked in Lange[264], in this context there is little difference between what is conveyed by that phrase ['reasonably appropriate and adapted'] and the notion of 'proportionality'". Whether expressed as a test of "proportionality" or as a test of "reasonably appropriate and adapted", the inquiry seeks to measure the impugned provisions against other available means of achieving an identified end. Proper identification of the relevant end is, therefore, not simply important; incorrect identification of the end will determine the result of the proportionality analysis. Identifying the intended "end" as facilitating, encouraging or not preventing any who are eligible to vote from participating in the election begs the question by defining the constitutionally mandated system of government in a manner divorced from constitutional text or structure. It dictates the result of any proportionality analysis.

[219]

The plaintiffs' case was not made good. Application of the impugned provisions does not yield Houses of the Parliament that do not satisfy ss 7 and 24 and are not "directly chosen by the people". The impugned provisions, closing off the rolls by reference to the date of issue of the writs for an election, facilitate the exercise of the franchise. Neither plaintiff (nor others in like case with either) is disenfranchised by application of the impugned provisions. The plaintiffs did not show that the alterations made to the cut‑off dates by the 2006 Act were not reasonably appropriate and adapted to the ends of having Electoral Rolls that are fixed for use at a particular election and are suitable for use in distributing States into Electoral Divisions.
It was for these reasons that I concluded that the application should be dismissed, with costs.
Having regard to what has since been written, one further point should be made. The content of the constitutional expression "directly chosen by the people" neither depends upon, nor is informed by, what are seen from time to time to be the politically accepted or politically acceptable limits to the qualifications that may be made to what is otherwise universal adult suffrage. As I explained in Roach[265], reference to "common understanding" or "generally accepted Australian standards" does not provide a valid premise for consideration of the issues in this matter. The understanding or standards mentioned have varied, and will likely continue to vary, over time. Their content cannot be reliably determined in a way that permits their use as a criterion of constitutional validity. The ambit of the relevant constitutional powers is not set by the political mood of the time, or by what legislation may have been enacted in exercise of the powers. Political acceptance and political acceptability have no footing in established doctrines of constitutional interpretation.
HEYDON J. The reasons for judgment of Hayne J have set out the constitutional and legislative provisions, the background circumstances, and the abbreviations relevant to what follows.

[220]

The plaintiffs said that the impugned provisions created an "exclusion from the constitutional franchise" and "loss of the franchise". They were said to "disenfranchise" the plaintiffs, or "disentitle or exclude [them] from casting a vote". They were said "significantly [to] burden or limit the entitlement of a substantial number of adult citizens to enrol and vote". They were said to be "arbitrary" and "disproportionate".
The plaintiffs also referred to a submission of the Human Rights and Equal Opportunity Commission to the Senate Finance and Public Administration Committee in 2006 which made the following claims. One was that the prohibition on accepting new enrolments after the day the writs were issued "has the potential to disadvantage young, first-time voters and new Australian citizens". Another was that a three day period for changing enrolments "disadvantages itinerant populations and people living in remote and rural areas" and "disproportionately" disadvantages "Australia's Indigenous population". Another claim was that these short periods of time "may also disadvantage people with disability who need assistance to access and complete the relevant materials." In addition, the plaintiffs referred to the difficulties young adults face in remaining correctly enrolled due to their residential and workplace mobility. The plaintiffs referred to the disproportionate impact on the homeless. The plaintiffs submitted that "the voting patterns of different age groups can differ substantially", and "a decision as to the time in which rolls will close will have recognised political consequences in relation to enrolments and transfers of the differing age groups, thereby enabling it to be a politically motivated decision." The plaintiffs did not, however, submit that the decisions of the Prime Minister in relation to the calling of the 2010 election fell into this category.
The plaintiffs also submitted that "many hundreds of thousands of … young electors … rely on" the existence of a seven day period after the writs are issued for an election "as a way of updating their enrolment". There is no evidence of this reliance. The plaintiffs themselves did not give any evidence to that effect in their affidavits. It is true that many people do not enrol, or transfer their enrolment, until an election is called, but that is a different proposition.
The plaintiffs' contentions thus concentrated on the supposed impact of the impugned provisions on Australia's young adults as well as its wretched of the earth - its descamisados and other victims. The plaintiffs never demonstrated that that impact had constitutional relevance, or had any point other than an appeal to pathos. Whether or not the plaintiffs' contentions are correct as a matter of fact, it may be desirable to begin by noting, first, some notorious background facts, and, secondly, the personal position of the plaintiffs.

[222]

What was the effect of the impugned legislation on the plaintiffs personally in relation to the events of this year's election? On Saturday 17 July 2010 the Prime Minister announced that there would be a federal election on Saturday 21 August 2010. Pursuant to ss 12 and 32 of the Constitution, the writs for that election were issued on Monday 19 July 2010. The consequence of the impugned provisions was that claims for new enrolments made after 8pm on Monday 19 July 2010 would not be considered until after the election, and claims for transfers of enrolment made after 8pm on Thursday 22 July 2010 would not be considered until after the election. Had the provisions which preceded the 2006 Act been in force, the electoral roll would have closed for both new enrolments and transfers at 8pm on Monday 26 July 2010. Hence, the first plaintiff, by reason of s 102(4) of the Act, had only one working day to enrol from the time when the Prime Minister announced the election date: she would have had six working days had the provisions in force before the 2006 Act remained in force. And the second plaintiff, by reason of ss 102(4AA) and 155, had only four working days to transfer his enrolment: he too would have had six working days had the provisions in force before the 2006 Act remained in force.
But by reason of s 101(1) and (4), the first plaintiff had been under a statutory duty to enrol ever since she turned 18 on 16 June 2010 - more than a month before the rolls closed. It is true that the criminal sanction was small (a fine not exceeding one penalty unit): s 101(6). And it is true that s 101(7) prevented criminal proceedings from being instituted for an offence once the claim to enrolment was made. But the first plaintiff was in breach of statutory duty until then. What is more, she had had more than the five weeks since her eighteenth birthday in which to enrol. She also had had available to her a facility afforded by s 100 of the Act to make a claim to have her name placed on the roll from the time she turned 16. The first plaintiff did not avail herself of that facility. Had she done so, she would have been placed on the roll, and would have been able to vote as soon as she turned 18.
The second plaintiff's position was similar. He had not been jammed between a sudden change of address and an unexpected announcement by the Prime Minister. By reason of s 101(1) and (4), the second plaintiff had been under a statutory duty, backed by the s 101(6) criminal sanction as qualified by s 101(7), to transfer his enrolment from the time when he moved to his new address in March 2010 - some four months before the Prime Minister's not unexpected announcement.
Before examining the substantive arguments of the plaintiffs, it is convenient to note some difficult aspects of them.

[223]

An unconvincing distinction between the allegedly invalid and the admittedly valid. The first plaintiff's argument was that the provisions in force before the 2006 Act that gave her five more working days to enrol than the impugned provisions introduced in 2006 were constitutionally valid, but the impugned provisions introduced in 2006 were not. And the second plaintiff's argument was that the provisions in force before the 2006 Act giving him two more working days to transfer his enrolment than the impugned provisions introduced in 2006 were constitutionally valid, but the impugned provisions introduced in 2006 were not. It is not possible to infer from the requirement in ss 7 and 24 of the Constitution that the Houses of Parliament be "chosen by the people" that these temporal differences are of such crucial decisiveness as to mark the difference between validity and invalidity. Differences of this type are in a sense arbitrary, but they are characteristic of the choices which legislatures make, and have to make. It is unlikely that the fundamental norms underlying the Constitution and reflected in its language would require the conclusion that one regime was constitutionally valid while the other was invalid.
In part the unsatisfactory distinctions on which the plaintiffs relied stemmed from a reluctance to face up to the logic of their own arguments. That logic pointed at least to the conclusion there should be the widest possible participation in elections - that no person qualified to vote under s 93 should be prevented from voting under s 101 by reason of a failure to make a claim for enrolment or for transfer of enrolment. The arguments assume that all of those entitled to be on the rolls should be entitled to vote. That goal could only be achieved if the time to make claims for enrolment or for transfer of enrolment extended for the maximum amount of time before an election - perhaps right up to the moment when the polling booths closed on the day fixed for the election. An argument that ss 7 and 24 of the Constitution require electors to have the maximum amount of time to enrol before an election is more ambitious, but also more powerful, than an argument that they require a period of only one week after the day when the writs are issued. In the present case the plaintiffs selected the limited arguments they did, perhaps, so as to avoid causing alarm by deploying arguments more consistent with the underlying logic of their position. Those arguments would have had a seemingly audacious character, and perhaps a seemingly flawed nature, which would have reflected badly on the limited arguments they actually chose to advance. And the more consistent but more audacious arguments might have had a potentially annihilating effect on the course of the 2010 election: it is far from clear that the first defendant could have coped with the consequences flowing from their success so as to permit the smooth running of the election. The anomalies which result from the much more limited arguments that were offered raise grave questions about the validity of both the limited and the audacious arguments.
Incidentally, so far as the logic of the plaintiffs' arguments calls for the widest possible participation in elections, that logic, arguably, points to even wider conclusions. If the words "chosen by the people" require all of those entitled to be on the rolls to be entitled to vote, why should many members of the population lack entitlement to be on the rolls? Given that an important constitutional provision like s 75(v) can be availed of not merely by Australian citizens but by anyone within the Queen's peace, and given that other sections of the Constitution (for example, ss 80 and 117) do not speak only to citizens, is it valid to exclude from the franchise permanent residents? Or people with long term visas? Or any lawful resident? Or even unlawful residents? Is it valid to exclude persons below the age of 18? Are not all these persons in a sense part of "the Australian people", "the Australian nation", "the Australian community"? If the provisions excluding them from the franchise are valid, the underlying assumptions of the plaintiffs' arguments are questionable.
The plaintiffs' arguments do not remedy the problems said to make the impugned provisions invalid. So far as the plaintiffs' arguments about constitutional validity appealed to the particular circumstances of mobile young people, new citizens, itinerant persons, residents of rural and remote areas, Aboriginal persons, persons with disabilities and homeless persons, they did not demonstrate that the difficulties of all or any of these classes would be overcome to any significant degree by extending for five working days the period of enrolment and for two working days the period for transferring enrolment.
The plaintiffs' arguments do not remedy wider problems. The plaintiffs contended that the pre-2006 position, giving a seven day period in which to enrol or transfer enrolment, was valid because "it has been shown not to have resulted in such substantial disenfranchisement" that the Parliament had ceased to be a legislature "yielded by the vote of the people". In so far as the plaintiffs' arguments depended on there being "substantial" numbers of voters "excluded" by the impugned provisions, they overlooked the probability that whatever legislative regime were adopted, numbers of voters which are in some sense "substantial" would be "excluded".
In 2004, persons who had not enrolled or transferred their enrolment had seven days after the writs were issued to do so: 168,394 people lodged claims for enrolment or transfer after the electoral rolls closed. In 2007, persons who had not enrolled had to do so on the day the writs were issued and persons who had not transferred their enrolment had three more days: 100,370 lodged claims for enrolment or transfer after the electoral rolls closed. It was estimated that 100,000 claims for enrolment were received after the time stipulated under the 2006 amendments but before the time that applied before the 2006 amendments. There was no evidence, however, about the number of claims received outside the time that applied before the 2006 amendments. It would be naïve to suppose that there were no claims of that kind, or that there were not many people qualified to vote who did not enrol. Indeed the plaintiffs frankly conceded that about 1.4 million persons eligible to enrol and to vote are not enrolled - a figure much higher than the numbers supposedly "excluded" by the impugned legislation.

[224]

The Solicitor-General of the Commonwealth assumed the correctness of the test advocated by the plaintiffs. It had two elements. The first turned on whether the impugned provisions amounted to legislative disqualification from adult suffrage. If so, then according to the second element, the disqualification could only be constitutionally valid if, in the words of three Justices in Roach v Electoral Commissioner, it were for a "substantial" reason, namely one which was "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government."[266] Even if the Solicitor-General was correct in assuming that the second element of this test is applicable to cases of the present kind, this is not a case of disqualification.
As the Solicitor-General rightly submitted, the plaintiffs were not in the position of the plaintiff in Roach v Electoral Commissioner. Vicki Lee Roach was completely debarred from voting while she served the term of her imprisonment. It was not the case that the law qualified the manner in which she might vote, or the facilities through which she might vote. She was simply not eligible to vote. In contrast, the plaintiffs in this case were fully qualified and entitled respectively to enrol and to transfer enrolment. The impugned provisions stopped them from taking steps to exercise that entitlement over a short period of time - a relatively small fraction of the period in which it was open to the plaintiffs to protect their positions. The plaintiffs were prevented from exercising their entitlement because they failed to comply with simple obligations and procedures in relation to getting enrolled (in the case of the first plaintiff) and transferring enrolment (in the case of the second plaintiff).
If the analysis is shifted from the position of the plaintiffs to the position of other persons qualified to enrol or vote, its outcome is as follows. Whether particular voters fall within the classes prevented by the impugned provisions from voting is within their control: they can enrol up to 8pm on the day when the writs are issued, and they can change their enrolment within a further three days. The impugned provisions prevent only three very limited classes of voters who are able, ready and willing to enrol or transfer enrolment from doing so. The first of these very limited classes is voters who have not enrolled because they turn 18 between the issue of the writs and polling day. Their difficulty is curable if they employ the facility available pursuant to s 100 by which persons aged 16 can make a claim to be enrolled. Further, pursuant to ss 100 and 102(4AB) if they turn 18 after the writs are issued and before the election, they can make a claim within the period of three days after the issue of the writs. The second very limited class comprises voters who are to become Australian citizens between the date of the writs and polling day. Their difficulty is curable by the facility available to them to apply for enrolment within a period up to three days after the issue of the writs: ss 99B and 102(4AA). And the third very limited class comprises those who have moved from one Division to another just before the writs are issued and will become entitled, pursuant to s 99(2), to transfer their enrolment after living at a particular address for one month. The plaintiffs did not submit that the existence of this third class rendered the legislation constitutionally invalid, and there is no material before this Court from which it can be concluded that the class is "substantial".
Indeed there is nothing to suggest that the memberships of these three classes, whether taken separately or together, and even if the facilities for curing the difficulties of the first two classes are not availed of, are "substantial" in any sense which would satisfy the plaintiffs' test of "substantial disenfranchisement". These three exceptional classes would exist in slightly different forms even under the regime accepted as valid by the plaintiffs, namely the enrolment or transfer of enrolment within seven days after the issue of the writs. The fact that these three exceptional classes exist therefore cannot point to the constitutional invalidity of the impugned provisions while leaving the provisions existing before the 2006 Act valid.
All other voters outside the three exceptional classes who fail to enrol or transfer enrolment are the authors of their own misfortunes. They have not taken the steps to enable them to vote which were not only available to them, but required of them by s 101. They are simple steps. It would have been very easy to take them. There was ample time to take them. Despite the prodigious efforts of the first defendant, and the criminal sanctions directed at securing a complete exercise of the franchise, large numbers of people entitled to vote may end up not voting.
It was earlier noted that as many as 1.4 million people do not enrol at all, for a variety of reasons. It may be because of their inefficiency. It may be because of their apathy. It may be because they have a positive desire not to participate in the electoral process. One example is the appellant in Judd v McKeon[267], which upheld the validity of the provisions making voting compulsory: all the candidates supported capitalism and he belonged to a party which opposed it and prohibited him from voting for supporters of capitalism. Another example is Evelyn Waugh, who said: "I do not aspire to advise my sovereign in her choice of servants."[268] It is difficult to treat any of these circumstances as factors relevant to the invalidation on constitutional grounds of an electoral system which works satisfactorily in relation to those who are not inefficient, apathetic, or conscientiously indisposed to participate. If not, why are the much lower numbers excluded by reason of the impugned legislation relevant? Of those who are validly enrolled, some forget that the election is on and do not vote, some turn up too late to vote, some are prevented from voting by a sudden crisis, some are indifferent about voting, some cast informal votes by mistake, and some cast informal votes deliberately. It is notorious that these classes of enrolled non‑voters are much more numerous than those excluded by reason of the impugned legislation. None of their members could be described as "disqualified". Nor could those who fail to take steps under s 101 which would enable them to vote. It is they who disqualify, disenfranchise, exclude or disentitle themselves, not the legislature. The conduct of all these categories of people who fail to enrol, or, being enrolled, fail to vote, does not prevent the legislature being described as "chosen by the people".
The plaintiffs submitted that the impugned amendments created a "burden" on those who desired to make a claim for enrolment or for transfer of enrolment outside the times stipulated - a burden which "does fall disproportionately and is known to fall disproportionately so it is a particular burden on a particular part of the people." The legislation placed no "burden", and no "disproportionate" burden. If there were any burden on anyone, it was a burden which those who bore it placed on their own shoulders.
Since there has been no "disqualification", it is unnecessary to consider either the formulation or the application of the test which would apply if there had been disqualification.
The plaintiffs met the possibility that there was no disqualification by submitting that the Roach test extends beyond disqualification to enactments which do not involve disqualification, but which could be said to "disenfranchise any group of adult citizens or otherwise disentitle or exclude them from casting a vote". The test has verbal similarities with that employed in Lange v Australian Broadcasting Corporation[269]. That is a test applicable to burdens on freedom of communication about governmental and political matters. It was applied in that case in relation to qualified privilege as a defence to the tort of defamation. Even on the assumption that it operates satisfactorily in that field and in the field of disqualification from voting, it does not follow that it is the correct test in other fields, and the plaintiffs did not demonstrate that it was; indeed they did not even endeavour to do so.

[225]

The nature of "representative government" has changed in Australia in the last century. The franchise has widened in point of gender, race and age. Enrolment was made compulsory in 1911. Proportional voting was introduced for the House of Representatives in 1918. Voting was made compulsory in 1924. Proportional voting was introduced for the Senate in 1948. But it does not follow from the fact that "representative government" has changed that the meaning of the constitutional expression "chosen by the people" has similarly changed.
The plaintiffs, and not only the plaintiffs, advanced submissions turning on the relationship between the forms of electoral law from time to time over the last 110 years and the meaning of the Constitution. It was submitted on behalf of the Attorney-General for Western Australia that the "common contemporary understanding of a concept invoked by the Constitution" - that is, that understanding from time to time in the last century - influences "the meaning of a constitutional term", namely, "chosen by the people". These submissions generated a congenial atmosphere. But that atmosphere was disturbed by the Solicitor-General of the Commonwealth. Stimulating as much approbation as the man who asked for a double whisky in the Grand Pump Room at Bath, he asked an "originalist" question and propounded an "originalist" answer. The question was whether, in the light of the meaning of the words "chosen by the people" in 1900, precluding persons not on the electoral roll after the issue of the writs from voting in the election produced a legislature not "chosen by the people". The answer was in the negative, because a system of that kind fell within the meaning of those words in 1900.
That answer is correct because the first federal election, in the absence of contrary provision by the Parliament, was conducted pursuant to the State laws relating to the more numerous House of Parliament of each State: see ss 8, 10, 30 and 31 of the Constitution. The researches of the Solicitor-General of the Commonwealth and counsel appearing for the Attorney-General for Western Australia have revealed that all those State laws made the right to vote in an election conditional on being enrolled on the relevant electoral roll[270]. In each State there were provisions that closed off the electoral roll to new enrolments or transferred enrolments at some point before polling day, although the precise date on which the rolls became closed varied significantly from State to State.
In New South Wales the general electoral roll was revised annually. The Revision Court sat in October and the roll was to be finalised in December. The Revision Court also sat in March to produce a supplementary roll in May of each year. Each roll remained in force until the coming into force of the next general roll[271]. Transfer of an elector's right to vote from one district to another was accomplished by placing the elector's name on an additional roll without recourse to the Revision Court[272], but no entry could be made in the interval between the issue of the writ and the declaration of the poll[273].
In Queensland an annual electoral roll was completed each December and it was supplemented by quarterly electoral rolls[274]. Each roll while in force was (subject to specific exclusions) conclusive evidence of the entitlement of persons named in it to vote[275].
In South Australia new rolls were to be prepared every tenth year[276] with supplemental rolls printed annually[277] as well as "immediately previous to a general election"[278]. Claims for enrolment were receivable at any time and were to be acted upon immediately[279], but the rolls were not to be altered on polling day or during the four days preceding an election[280]. Applications for transfer were receivable at any time except on polling day or in the 10 days leading up to the election[281]. However, a person was not entitled to vote unless that person had been registered for six months as an elector[282].
In Tasmania claims for enrolment were to be made in November of each year[283], with an annual revision of the rolls to be completed in April[284]. The roll for each Division as revised was to be used in any election taking place until the following April[285].
In Victoria separate processes existed for the two Houses of Parliament. For the Legislative Council, a general electoral roll was prepared annually by a process ending in February, with a supplementary roll completed each August[286]. For the Legislative Assembly, a general roll was prepared annually by a process ending in April, with a supplementary roll in September[287]. For both Houses, each roll continued in force until the completion of the next annual roll[288].
In Western Australia new rolls were to be prepared in connection with each census[289] with supplemental rolls printed annually[290] as well as "immediately previous to a general election"[291]. Claims for enrolment were receivable at any time and were to be acted upon immediately[292], but the rolls were not to be altered on polling day or during the four days preceding an election[293]. Applications for transfer could not be made between the issue of a writ for an election and polling day[294]. A person was not entitled to vote in an election unless that person had been registered for six months as an elector[295].
Some of the States having provisions preventing persons from voting unless enrolled, and not permitting enrolment after the issue of the writs, had property qualifications which were either necessary or sufficient conditions for voting. The States in question were Queensland[296], Tasmania[297] and Western Australia[298]. Some of these property qualifications were complex, and checking them in the period between the issue of the writs and polling day might have been difficult. But, as the Solicitor-General of the Commonwealth correctly submitted, this cannot explain why in those States it was not possible to alter the rolls after the issue of the writs.
It follows that the contemporary understanding of the words "chosen by the people" in 1900 was consistent with the exclusion of those not on the roll when the writs were issued from voting.
Those who object to the type of reasoning employed by the Solicitor‑General of the Commonwealth commonly contend that the understanding in 1900 of appropriate electoral laws is irrelevant in that those laws were different from, and less enlightened than, our own. In those days in elections to some legislatures there were property qualifications, restrictions on Aboriginal suffrage and restrictions on female suffrage. The question, however, is not what the most enlightened possible meaning, judged by modern standards, might be borne by the words "chosen by the people". The question is what meaning skilled lawyers and other informed observers considered those words to bear in the 1890s[299], and, being words used to describe processes which were evolving and subject to "dynamism"[300], what meanings those observers would reasonably have considered they might bear in future[301]. Even though the federation age knew of property qualifications, restrictions on Aboriginal suffrage and restrictions on female suffrage, it also knew of universal manhood suffrage, Aboriginal suffrage and female suffrage, and knew of those things in the practical sense that in some parts of Australia they existed without relevant restriction. The failure of the federation age to offer universally applicable systems of suffrage conforming entirely to the most advanced modern models is not a reason to ignore what the meanings and applications of the words "chosen by the people" in the federation age were.
As counsel for the Attorney-General for Western Australia correctly submitted, a person in the position of the first plaintiff, who wished to become enrolled after the issue of the writs for an election, could not have done so in the first federal election in any State. And a person in the position of the second plaintiff, who wished to transfer his enrolment after the issue of the writs, could only have done so in South Australia, and even then only in certain circumstances. Assuming that the Constitution now means what it meant then, on the plaintiffs' case, had there been a challenge to the validity of the electoral laws under which the first election was conducted, the challenge would, paradoxically, have succeeded, but for their explicit adoption by ss 10 and 31 of the Constitution. That points against the words "chosen by the people" bearing the construction for which the plaintiffs contend.

[235]

Between 1902 and 1983 the legislation required the electoral rolls to close on the day the writs were issued. The burden of which the plaintiffs complain would not exist in relation to elections in which the executive exercised a discretion to permit more than seven days to elapse between the calling of the election and the issue of the writs. But that cannot render electoral laws valid which would otherwise have been invalid. Legislation which is invalid if administered in one way cannot be treated as valid if it could be administered in another.
The Solicitor-General of the Commonwealth was correct to submit that if the submissions of the plaintiffs were sound, all federal elections conducted up to and including 1983 have been conducted under invalid electoral laws, and that this conclusion is so highly improbable as to cast considerable doubt on the submissions of the plaintiffs which led to it. Far from being beside the point, the Solicitor-General's submission is, particularly in relation to elections conducted in the federation age, forceful.
The plaintiffs parried the Solicitor-General's submission by contending that there are some developments in electoral law which the Constitution now prevents the legislature from reversing. They said that the Constitution renders it impossible now to return to an earlier stage of development, even though that stage of development would have been constitutionally valid at an earlier time. The only specific examples the plaintiffs gave were universal adult suffrage and the capacity to vote at 18. Even if those examples are correct, it does not follow that the much more general proposition of which they were said to be illustrations is correct[302]. And even if that much more general proposition is correct, it does not follow that the return made in the 2006 amendments to the position obtaining from 1902 to 1983 is constitutionally invalid. The plaintiffs relied on the emergence of "different circumstances (including changing technology enabling continuous roll updating … and the processing and checking of large numbers of claims for enrolment very rapidly)". The proposition which the plaintiffs advocate does not follow from these circumstances.
The proposition which the plaintiffs advocate also leads to the result that even where an election is conducted under legislative provisions which result in members of Parliament being "directly chosen by the people" - the constitutional criterion - those provisions may nonetheless be constitutionally invalid because they retreated from the position achieved by earlier legislation (or executive practice). A conclusion which rests on an asseveration that legislation meeting a constitutional criterion is constitutionally invalid is a contradiction in terms. It is a contradiction which casts in doubt the whole of the reasoning which led to it. The constitutional validity of legislation depends on compliance with the Constitution, not on compliance with "higher" standards established by the course of legislation and by the operation of executive discretion. The question is not whether an impugned legislative provision "regresses" from some "higher" standard established by the status quo. It is only whether it fails to meet a constitutional criterion. Legislative development, durable or otherwise, does not create constitutional validity or invalidity which would not otherwise exist. Otherwise the legislature could enact itself into validity.

[236]

Under the legislative scheme, an effective franchise system depends on an accurate electoral roll. Entitlement to vote depends on being on the roll. The legislation also seeks to ensure an approximate equality of voters in each Electoral Division. The Electoral Commissioner is obliged each month to ascertain the number of electors enrolled in each Division, determine the average divisional enrolment, determine the extent to which the number of electors enrolled in each Division differs from the average divisional enrolment, and publish a statement of the results in the Gazette: s 58(1). Sections 59-78 make provision for redistribution, where, inter alia, more than one third of the Divisions in a State are "malapportioned Divisions". These provisions depend for their effectiveness on those entitled to be enrolled becoming enrolled. They also depend for their effectiveness on persons enrolled making timely statements about a change of residence. The obligations to enrol and transfer enrolment imposed by s 101 are directed at achieving that state of affairs. The right of enrolled electors to vote could not operate optimally without citizens complying with the duties to enrol and to transfer enrolment. To ensure the accuracy of the rolls, the Electoral Commissioner has the power to reject claims to enrol or transfer enrolments which are not in order: s 102(1)(c). There are also provisions pursuant to which electors may object to the enrolment of others: Pt IX. The scheme contains an elaborate procedure for the conduct of an election after the writs have been issued which assumes that the electoral rolls are in very large measure correct. The scheme also gives the electoral rolls immunity from challenge in the Court of Disputed Returns after the election is over: s 361(1).
A key element in the legislative scheme to secure largely correct electoral rolls is the use of compulsion. There is a statutory command to claim or transfer enrolment. That command is backed by a criminal sanction. The plaintiffs did not dispute the constitutional validity of either the command or the sanction. What they demand is an entitlement to continue disobeying the command and ignoring the sanction for longer periods than the impugned provisions allow.
The plaintiffs say that the impugned provisions are void because they fix periods which cause a "substantial" number of persons to be disenfranchised. On the plaintiffs' arguments, the disenfranchisement only arises because a "substantial" number of people choose to disobey laws compelling them to claim or transfer enrolment, laws which the plaintiffs concede are valid. The plaintiffs' arguments could not work if it were only they who had disobeyed the laws, because two is not a sufficiently substantial number. The laws alleged to be invalid and the laws conceded to be valid are, however, part of a single integrated scheme. The constitutional validity of some laws in that scheme cannot turn on the number of people who choose to disobey other concededly valid laws enacted as part of that scheme. The validity of the impugned provisions cannot wane or wax as the number of persons who fail to comply with their statutory duties rises or falls. Substantial disobedience to laws validly enacted under a power to do so in the Constitution (in this instance s 51(xxxvi)) cannot render invalid other laws enacted under that power. So to hold would subvert not only the validly enacted laws, but also the Constitution under which they were validly enacted.

[237]

For the above reasons I opposed the orders made by the Court on 6 August 2010, and would have dismissed the proceedings with costs.
CRENNAN J. In this proceeding the plaintiffs put in issue the constitutionality of amendments made to the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the 2006 Act"). The legislative history, and a description both of the current electoral structure and of the calling of the general election for 21 August 2010, are all set out in the joint judgment of Gummow and Bell JJ.
As adult Australian citizens[303], able to satisfy a one month residency requirement[304], each plaintiff is entitled to be on an Electoral Roll under the Electoral Act[305]. Ms Rowe, having turned 18 on 16 June 2010, is obliged to enrol, and Mr Thompson, having changed his address in March 2010, is obliged to transfer his enrolment[306]. If enrolled, each plaintiff is entitled to vote at elections of senators for the State in which each resides[307] and at elections of members of the House of Representatives for the Subdivision in which each resides[308].
Each of the plaintiffs wished to vote at the election held on 21 August 2010 and for that purpose each sought to be enrolled on the relevant Electoral Roll within seven days after the issue of the writs. This would have been possible under the Electoral Act as it stood before the 2006 Act. However, the plaintiffs' claims were not considered because of the provisions of ss 102(4), 102(4AA) and 155 of the Electoral Act, being amendments made by the 2006 Act, expressed to repeal ss 102(4) and 155 as they previously stood.
Under s 102(4), the time during which a claim for enrolment must not be considered begins at 8:00 pm on the date of the writ or writs for an election for the relevant Division and ends at the close of the polling at the election. Under s 102(4AA) the time during which a claim for transfer of enrolment must not be considered begins at 8:00 pm on the date of the close of the Rolls (fixed by s 155(1) as the third working day after the date of the relevant writ) and ends at the close of the polling at the election.
The plaintiffs impugned ss 102(4), 102(4AA) and 155 of the Electoral Act, asserting in their written submissions that they are: (a) contrary to ss 7 and 24 of the Constitution; (b) beyond the legislative powers of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution; and/or (c) beyond what is reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government. During the course of oral argument the plaintiffs concentrated on ss 7 and 24 and the prescription therein for Houses of Parliament composed of members "directly chosen by the people". Their submissions did not turn on the word "directly".
The impugned provisions were characterised as "disenfranchising" the plaintiffs because, although the plaintiffs were legally eligible to vote in the election in the State and Subdivision in which they reside, the provisions prevented them from doing so. Accordingly, it was contended that the impugned provisions are not reasonably adapted and appropriate to support choice by the people in elections for the Senate and the House of Representatives and that the provisions interfere, unreasonably and unnecessarily, with the opportunity to enrol and vote. The plaintiffs accepted that Parliament was entitled to prescribe a cut‑off date for enrolment and transfer, and they did not attack the validity of ss 102(4) and 155 as they stood previously.
Evidence from the Deputy Electoral Commissioner indicated that there were approximately 100,000 claims for enrolment received after the cut‑off dates described above which would have been made within time under ss 102(4) and 155 as they stood prior to the 2006 Act[309]. Evidence that those claims could be processed onto an Electoral Roll within the statutory timetable set for the election was not controverted.
A declaration of invalidity was made by the Court, by majority, on 6 August 2010, the effect of which is to repeal the impugned provisions and thereby restore the operation of the Electoral Act as it previously stood[310]. For the following reasons I joined in the making of those orders.
When referring to the influence of the introduction of responsible government and its development, in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley[311], Isaacs J asserted the relevance "in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognized at the time the Constitution was passed". In Attorney‑General (Cth); Ex rel McKinlay v The Commonwealth[312] the text of the Constitution was construed having regard to the historical setting in which the Constitution was created, which included considering the colonial suffrages in Australia in 1900[313].
In establishing the Commonwealth, the Constitution directs, and gives effect to, a system of representative government[314] (sometimes called representative democracy[315]) which involves direct popular election[316]. The Constitution left it to Parliament, within the limits fixed by the Constitution, to prescribe the form of representative government[317]. The matters of qualification for the franchise and the method of election for both the Senate and the House of Representatives are left by the Constitution to the political choice of Parliament, so long as any electoral system adopted remains within the broad range of alternatives by which provision may be made for Houses of Parliament composed of members "directly chosen by the people"[318].
In Roach v Electoral Commissioner[319] Gleeson CJ said:

[241]

The historical circumstances, and the stage reached in the evolution of representative government, as at the date of federation assist in exposing the bedrock and show that the relevant words of ss 7 and 24 have always constrained Parliament, in a manner congruent with Gleeson CJ's conclusion that the words of ss 7 and 24 have come to be a constitutional protection of the right to vote.
Representative government is a government in which members of Parliament represent those who have voted for them in an election[325]. A franchise which is exclusive and undemocratic yields an oligarchic representative government[326]. Edmund Burke described this form of government as amounting to "virtual representation" of the people, even though the representatives "are not actually chosen by [the people]"[327].
The expression "chosen … by the People" occurs in Art I, s2 of the American Constitution, but it has its own distinctive history in Australia[328] grounded in British constitutional history and colonial politics in the second half of the nineteenth century. In constitutional discourse over a long period, choice by the people of parliamentary representatives has signified democracy, democratic elections and a democratic franchise.
The defining constitutional debate in Britain in the nineteenth century was over whether (and, if so, how) there should be a change from an oligarchic representative government to a democratic representative government. In that debate, manhood suffrage (that is, a right to vote which was not dependent on considerations of rank or class) was considered crucial to effect the change from oligarchy, "[g]overnment by the few"[329], to democracy, "[g]overnment by the people"[330]. As a result, franchises based on residential qualifications, rather than property qualifications, came to be seen as quintessentially democratic, an important point when considering the stage in the development of representative government which had been reached in the colonies prior to federation.
The Constitution emerged after debate in Britain over extending parliamentary representation by widening the franchise, in the direction of democratic representative government. Whilst framers of the Constitution "admired and respected British institutions"[331], an aspect of those institutions already contested successfully in some of the Australian colonies in the middle of the nineteenth century was the franchise based on property qualifications[332].

[243]

In that historical setting, colonial franchises were developed in Australia, in the 1850s, for newly instituted bicameral legislatures, as New South Wales, Victoria and South Australia framed their own Constitutions after the passage of the Australian Constitutions Act 1850 (Imp), which granted self‑government[345].
The first of the colonies to provide residential qualifications for voters (that is, manhood suffrage) in respect of elections for the Legislative Assembly was South Australia, with the Constitution Act (SA)[346] passed in 1856.
In Victoria, the second colony to introduce manhood suffrage, the discovery of major deposits of gold at Ballarat occurred shortly after the separation from New South Wales[347].
The Bill for the new Constitution for Victoria was laid on the table for debate by the colonial legislature in January 1854. It was noted by Colonial Secretary Foster in the prefatory report of the Select Committee on the New Constitution that "nothing could be more impolitic than to legislate against the spirit of the age" and that "the social condition of this colony renders a close assimilation to certain British institutions impossible and that an attempt to imitate them is likely, not only to fail, but to introduce the evils without the advantages experienced from them in England"[348]. A campaign had already begun for the enfranchisement of the diggers on the goldfields whose "property" was a tent or hut.
A diggers' association called the Ballarat Reform League had a programme which was "substantially that of English Chartism adapted to local circumstances"[349].
Diggers urged that "it is the inalienable right of every citizen to have a voice in making the laws he is called upon to obey. That taxation without representation is tyranny."[350] In a list of grievances they referred to "the strong conviction in the minds of the diggers that they never will have justice until they are fully and fairly represented in the Legislative Council" and urged the "giving [of] full and fair representation to the people"[351]. This was the language of British radicalism supporting a democratic franchise, and it echoed John Locke's insistence on the rights of the individual and the idea that good and just government should command the consent of the people[352]. Public discourse reflected the same themes.
The campaign for digger franchise eventually succeeded in 1855, the year following the Eureka Stockade[353], with the franchise following a £1 miner's right[354]. The Victoria Constitution Act 1855 (Imp)[355] received the Royal Assent on 16 July 1855 and came into operation a short time thereafter, and manhood suffrage for the Legislative Assembly inevitably followed digger suffrage in 1857[356]. Throughout the campaign for a wide suffrage based on residential qualifications, "choice by the people" of parliamentary representatives signified democracy, which required democratic election of parliamentary representatives, which in turn required a democratic franchise.
In New South Wales, the third colony to introduce manhood suffrage, there had been a public campaign, centred in Sydney, by a distinct group of self‑styled democrats for some years before the passage of the New South Wales Constitution Act 1855 (Imp)[357]; a group, known as the Constitutional Association, in which Mr (later Sir) Henry Parkes was active, had its own newspaper, The People's Advocate and New South Wales Vindicator[358]. Whilst events differed markedly from those in Victoria, the same imbrication of radical ideas was advanced in support of manhood suffrage for the lower House of Parliament. Manhood suffrage and the secret ballot were introduced for the Legislative Assembly in New South Wales with the passage of the Electoral Act 1858 (NSW)[359] on 24 November 1858.
The conception of democracy appealed to during campaigns in the 1850s for the right to vote transcended questions of qualifications for the franchise. Democracy was seen as an active and continuing process in which all legally eligible citizens had an equal share in the political life of the community, so as to secure legislatures which were both just and representative, and which enured to the peace and good order of the polity[360]. To that consideration might be added that, in its relations with other nations, a democratic nation is characterised as one in which political equality and liberty are secured, however variously, by different electoral systems. The centrality of the franchise, to a citizen's participation in the life of the community and membership of the Australian body politic, was recognised in Roach[361].
Whilst manhood suffrage for lower Houses of Parliament was achieved in the 1850s with relative ease in the colonies mentioned[362], an immediate reaction, to halt the tide of democracy, was to institute plural voting on property qualifications in lower Houses and to ensure that upper Houses were not democratic[363]. At federation the most populous States were New South Wales, Victoria, Queensland (which was part of New South Wales until 1859[364]) and South Australia[365].
At the time of their preparations for the Bill for the second Reform Act, British politicians, including Benjamin Disraeli, were keen to be informed of the experience of democracy in Australia[366], not least because they were interested in knowing whether plural voting successfully retarded the effects of the abovementioned colonial franchises.
Whilst the Constitution does not subscribe to any political philosophy, or theory of government, "choice by the people" of parliamentary representatives is a constitutional notion signifying individual citizens having a share in political power through a democratic franchise.

[249]

Unlike s 51(xxxvi), none of these sections is expressed to be "subject to this Constitution".
The colonial franchises picked up by these sections are colonial franchises for the lower Houses. Franchises for colonial upper Houses are not, with respect, relevant to s 30 of the Constitution[368]. Further, given both the reference to "the people" in ss 7 and 24, and the prohibition on plural voting in s 30, the Victorian franchise based on a "very small property qualification as the basis of plural enrolment"[369], and property qualifications for plural voting which existed elsewhere[370], do not seem to be of any abiding constitutional significance.
What were well known in the majority of the colonies of Australia at federation were franchises for colonial lower Houses, based on residential qualifications. Men (generally described as natural‑born or naturalised British subjects[371]) of 21 years of age, who were not subject to a disqualification[372], and who satisfied residential qualifications, could vote for the lower Houses of Parliament in New South Wales[373], Victoria[374], Queensland[375], South Australia[376] and Western Australia[377]. In Tasmania, the same applied from 28 January 1901[378]. Aboriginal Australians were included in those franchises in New South Wales, Victoria, South Australia and Tasmania[379]. It must be noted that in Queensland and Western Australia, Aboriginal persons had to satisfy a property qualification[380]. In the Northern Territory section of South Australia, Aboriginal Australians were excluded from the franchise[381], and this is recognised in s 25 of the Constitution. Women of 21 years of age, who satisfied residential qualifications, could vote for the lower Houses in South Australia and Western Australia[382]. Neither enrolment nor voting was compulsory at this time. Given the ban on plural voting in ss 8 and 30 these franchises, based on residential qualifications, were the significant franchises for the referenda for the Constitution and the first Parliament[383].
Reflecting such matters, ss 8, 30 and 41 were described by Professor Harrison Moore in his text on the Constitution as "designed to secure the 'democratic' principle that the suffrage shall be of the widest, and that no person shall have more than one vote."[384]
In McKinlay[385], McTiernan and Jacobs JJ said of s 24:

[260]

In the light of the colonial franchises for lower Houses of Parliament at the time of federation (and notwithstanding their lack of uniformity and deficits in relation to gender and race), ss 7 and 24 would have constrained Parliament from instituting an exclusive federal franchise based on property qualifications, or a franchise which permitted plural voting, for the reason that at the time such franchises would have been considered conspicuously undemocratic.
The correct characterisation of the legislative changes to the franchise since the Commonwealth Electoral Act 1902 (Cth) is that a democratic franchise has been widened on the journey to "representative democracy in its purest form"[395], that is, universal adult suffrage, in respect of which there are no arbitrary exclusions based on class, gender or race. In McKinlay, as a prelude to treating universal adult suffrage as "an historical development of constitutional significance"[396], McTiernan and Jacobs JJ referred to "the common understanding of the time" of the words "chosen by the people of the Commonwealth"[397] in order to acknowledge that common understanding varied over time, in accordance with legislative changes to the franchise.
Recalling the remarks of Isaacs J in Kreglinger[398], the constitutional principles which distinguish between oligarchic and democratic government were fully understood at the time of the commencement of the Constitution and were always in consideration in respect of the drafting of ss 7 and 24. Sections 7 and 24 of the Constitution do not prescribe any particular franchise. However, they constrain the Parliament from instituting a franchise which will result in an oligarchic representative government and mandate a franchise which will result in a democratic representative government, the preferable term used by Mason J in McKinlay[399] to describe the system of government, prescribed and maintained by the Constitution. What is sufficient to constitute democratic representative government has changed over time, as conceptions of democracy have changed, to require a fully inclusive franchise - that is, a franchise free of arbitrary exclusions based on class, gender or race.
To recognise that ss 7 and 24 mandate a democratic franchise, for the purposes of the popular elections which they prescribe, is to recognise the embedding of the right to vote in the constitutional imperative of choice by the people of parliamentary representatives.

[261]

The provisions for compulsory enrolment and for the imposition of a penalty for a failure to enrol, or transfer enrolment, within prescribed time limits have been set out in the reasons of others and are not repeated here.
Section 101(7) of the Electoral Act provides that a penalty for late enrolment will not be imposed, once enrolment or transfer of enrolment has been attended to. Whilst it is not suggested to be relevant to the plaintiffs, illness is a simple example of a reason for late enrolment, or late transfer, which would not ordinarily be thought to be inexcusable. Examples could be multiplied. Insofar as enrolment is both a legal duty and a civic right, in its operation, s 101(7) privileges the civic right over the legal duty, which is consonant with an electoral process designed to protect the franchise by encouraging enrolment and transfer of enrolment.
Provisions governing compulsory voting, upheld as constitutional in Judd v McKeon[400], and their legislative history, have also been set out in the reasons of others.
The plaintiffs framed their argument, that the impugned provisions were invalid, by reference to the centrality of the existence and exercise of the franchise, which is critical to democratic representative government, and which reflects a citizen's membership of, and participation in, the political life of the community[401]. It was emphasised in argument that the franchise in respect of parliamentary representatives for the State and Subdivision in which each of the plaintiffs resides is constitutionally protected.
The plaintiffs first contended that, in their practical operation, the impugned provisions "disenfranchised" them in the sense used in Roach. The provisions operate in practice to exclude persons such as the first plaintiff from the right to vote, and persons such as the second plaintiff from the right to participate in choosing their correct parliamentary representatives[402].
Secondly, the plaintiffs submitted that the disenfranchisement or exclusion, best described as a disentitlement, was not for a "substantial reason" as explained in Roach[403], and that the provisions were arbitrary and disproportionate in relation to maintaining the constitutionally prescribed system of representative government. The term "disproportionate" was employed to describe provisions which were not necessary, appropriate or justifiable in terms of preserving the integrity of the Rolls. In that context, the term "necessary" is not confined to what is "essential" or "unavoidable" but encompasses what is "reasonably appropriate and adapted" to serve a legitimate end. Debate on this aspect of the case was conducted largely by reference to that familiar expression, and this avoided the danger recognised by Gleeson CJ in Mulholland and Roach of referring to proportionality, in the context of the Constitution, so as to evoke considerations relevant only to different constitutional settings[404].
The Commonwealth (and the Attorney‑General for Western Australia, intervening in support of the Commonwealth) accepted that the power to make laws with respect to the qualification of electors, and the conduct of elections, is subject to the constraint that, by ss 7 and 24, each of the Houses of Parliament is to be "chosen by the people".
The Commonwealth also accepted that if the impugned provisions, in their practical operation, created a disqualification from what otherwise is adult suffrage, the question to be asked, in terms of Roach, was whether the disqualification is for a "substantial reason".
As to the plaintiffs' first argument, the Commonwealth argued that the impugned provisions did not effect a disqualification from the franchise, even though the provisions operated to prevent people from enrolling after a particular date, because s 101 of the Electoral Act imposes a duty on persons who are entitled to be enrolled to become enrolled, and to keep their addresses up to date. In respect of the plaintiffs' cases, it was asserted that they had not taken steps to enrol, or transfer, when required to do so under the Electoral Act.
On the plaintiffs' second argument, the Commonwealth submitted that the impugned provisions are not directed to any purpose incompatible with ss 7 and 24. It was contended that the orderly conduct of elections, based on Electoral Rolls of integrity, is consistent with the constitutionally prescribed system of government, a point which was not in contention between the parties.
It was submitted that it is not a prerequisite to the existence of the power to provide a relatively early cut‑off date following the announcement of an election, that there be any actual electoral fraud; it is not incompatible with ss 7 and 24 if a purpose of an early cut‑off date is to obviate prophylactically a risk of electoral fraud.
It was also contended by the Commonwealth that the early cut‑off date was directed to enhancement of the integrity of the Electoral Rolls, particularised in two distinct ways: first, it was said the impugned provisions increased the time available to the Australian Electoral Commission for processing enrolment applications before polling day, and secondly, it was said that the impugned provisions would reduce a known phenomenon of a late surge in enrolments by encouraging people not to wait until an election is called before enrolling. The conclusion said to follow was that the disentitlement or exclusion effected by the impugned provisions is appropriate and adapted to the smooth conduct of elections.
It can be accepted that the impugned provisions differ from those under consideration in Roach. Nevertheless, they operate to disentitle or exclude persons (otherwise legally eligible) from the right to vote and the right to participate in choosing parliamentary representatives for the State and Subdivision in which they reside. It can also be accepted that achieving and maintaining Electoral Rolls of integrity is a purpose which is compatible with ss 7 and 24.
The federal electoral process, characterised by compulsory enrolment and compulsory voting, requires comprehensive and accurate Electoral Rolls. Such Rolls will "guard" and "protect"[405] the franchise by ensuring that persons eligible to vote in an election, for their parliamentary representatives, will be able to do so. The Australian Electoral Commission, the independent body charged with maintaining the Electoral Rolls[406], was able to process in the usual way any late enrolments under the previous seven day cut‑off period[407]. There was no evidence that fraudulent activity was reduced by the shortening of the seven day cut‑off period, nor was there any evidence that systematic electoral fraud exists[408]. The Commonwealth was careful to emphasise that, in the context of a majority of a Joint Standing Committee on Electoral Matters recommending a shortening of the cut‑off period[409], a concern about electoral fraud had never been put any higher than a concern about the potential for electoral fraud.
The statement of agreed facts recorded that, for the general elections of 1993, 1996, 1998 and 2001, some 3.32 per cent, 3.23 per cent, 2.94 per cent and 2.96 per cent respectively of total enrolments were processed, as late enrolment transactions, during the period between the issue of the writs for each of those elections and the closure of the Rolls. In 2004, before the cut‑off periods instituted by the 2006 amendments, 423,993 enrolment transactions took place in the period permitted between the issue of the writs and the closure of the Rolls. In 2007, there were 279,469 enrolment transactions between the issue of the writs and the closure of the Rolls. It has already been mentioned that there were at least 100,000 late claims for enrolment in respect of the 21 August 2010 election.
In all those circumstances, the impugned provisions have not been shown to be necessary or appropriate for the protection of the integrity of the Rolls, as that object was advanced by the Commonwealth. First, this is because the Australian Electoral Commission had no difficulty in processing the volume of late enrolments which occurred with the previous seven day cut-off period. Secondly, to seek to discourage a surge of late claims for enrolment by disentitling or excluding those making them constitutes a failure to recognise the centrality of the franchise to a citizen's participation in the political life of the community[410]. Thirdly, the main reason put forward by the Commonwealth as the justification for the impugned provisions - namely, that they will operate to protect the Rolls from the risk of, or potential for, systematic electoral fraud - is to protect the Rolls from a risk or potential which has not been substantiated to date. Accordingly, the justification put forward to support the impugned provisions does not constitute a substantial reason, that is, a reason of real significance, for disentitling a significant number of electors from exercising their right to vote for parliamentary representatives in the State and Subdivision in which they reside. The impugned provisions cannot be reconciled with the constitutional imperative of choice by the people of those representatives.

[263]

Parliament has exercised legislative power concerning elections in a number of important respects. It has extended the franchise to all Australian citizens who have attained the age of 18 years[414], subject to provisions for disqualification[415]. It has made voting at elections compulsory[416]. It has obliged persons entitled to vote to enrol[417].
The Electoral Act provides for a Roll of Electors for each State and Territory[418]. Each State and the Australian Capital Territory are distributed into Electoral Divisions[419]. Provision is made for a Roll for each Division and a separate Roll for each Subdivision of a Division[420]. The Rolls are maintained as accurate, but not only for the purpose of ascertaining the entitlement of persons to vote at elections. They are sources of information[421] and are used to determine redistributions of Divisions in a State or Territory[422]. One of the key factors in the assessment, regularly undertaken, of the need for a redistribution, is the number of electors in fact enrolled in a Division at the relevant time[423]. The accuracy of the Rolls is therefore essential.
As presently expressed[424], a person who is entitled to be enrolled for any Division[425], whether by way of enrolment or transfer of enrolment, is required "forthwith [to] fill in and sign a claim [to enrolment] and send or deliver the claim to the Electoral Commissioner." A person so enrolled is called an Elector[426]. Any person who is entitled to have his or her name placed on the Roll and whose name is not on the Roll upon the expiration of 21 days from becoming so entitled is guilty of an offence, unless he or she proves that the non-enrolment is not a consequence of his or her failure to send or deliver a claim[427]. This offence provision is ameliorated by a further provision: that, where a person sends or delivers a claim for enrolment, proceedings shall not be instituted against that person for an offence committed before he or she sent or delivered the claim[428].
Regrettably, and despite the not inconsiderable efforts of the Australian Electoral Commission ("the AEC") and the possibility of prosecution for the abovementioned offence, some persons qualified to vote do not enrol or transfer their enrolment when becoming obliged to do so. Some make their claim at the last possible moment and only when an election has been announced.
This is not a new phenomenon. Records of the 2004 federal election disclose that there were 423,993 enrolment transactions (claims for enrolment and updating of existing enrolments) in the nine day period between the announcement of the election and the close of the Rolls. After the close of the Rolls, 168,394 claims were lodged. In 2007, following the amendments in question, when the post-announcement enrolment period was three days for new enrolments and nine days for updating enrolments, there were 279,469 enrolment transactions in that period and a further 100,370 after the close of the Rolls.
Following the announcement of the election for the two Houses made in July 2010, some 508,000 claims for enrolment or transfer of enrolment were received and processed onto the Rolls. At the time this matter was heard, the AEC estimated that there might be another 100,000 claims which would not be considered because of the provisions in question, ss 102(4) and 102(4AA) of the Electoral Act. The first and second plaintiffs' claims, to enrolment and transfer of enrolment respectively, were amongst them.

[264]

The 2006 amendments followed a "Report of the Inquiry into the Conduct of the 2004 Federal Election" by the Joint Standing Committee on Electoral Matters ("the JSCEM")[429]. This was not the first time that the question of the closure of the Rolls had been addressed. The issue had been dealt with on a number of occasions prior to the 2004 Election Report. This may explain why the recommendations contained in that Report were not specifically mentioned in either the Explanatory Memorandum or the second reading speech to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005, the Bill which introduced the provisions here in question. In the Report on the 2001 election, retention of the seven day period was recommended[430]. In another, earlier, report on the integrity of the Rolls[431], the JSCEM recommended that the period be shortened so that for new enrolments, the Rolls would close on the day of issue of the writs, and for transfers of enrolment, three days later.
In the 2004 Election Report, the JSCEM observed that the AEC processed approximately 17.5 per cent of the enrolment transactions for the whole year in the seven days before Roll closure[432]. It was considered that this limited the AEC's ability to conduct the thorough checks necessary to ensure the integrity of the Rolls[433] and that the "period of grace", of seven days, actually encouraged electors or potential electors to neglect their obligations and attempt to "catch up" in that period[434].
The JSCEM had referred, in the latter regard, to the fact that 60.5 per cent of the enrolment transactions which occurred in that period would not have been necessary if electors, or potential electors, had fulfilled their statutory obligation to enrol or update their enrolment details within 21 days of becoming so entitled[435]. Because the "period of grace" encouraged reliance upon the extra time allowed, it was considered by the JSCEM to serve "to decrease the accuracy of the roll during non-election periods"[436]. Further, unsuccessful attempts by the AEC to maintain the Rolls as current caused a significant wastage of taxpayer funds, the JSCEM said[437].
The JSCEM went on to say that it "also agrees that the current close of roll arrangements present an opportunity for those who seek to manipulate the roll to do so at a time where little opportunity exists for the AEC to undertake the thorough checking required [for] ensuring roll integrity."[438] Dealing with the argument that there was no proof of electoral fraud sufficiently widespread to warrant any action, the JSCEM said that that approach "missed the point"[439], which was that steps should be taken to prevent fraud.
Following upon the recommendations of the JSCEM, and after the further recommendation of the Senate Finance and Public Administration Committee that the Bill be passed[440], amendments were effected to the Electoral Act[441]. Section 102(4) provides that a claim for enrolment made after 8.00 pm on the date of the writ for an election is not to be considered until after the close of polling at the election. Section 102(4AA) provides that a claim to have an enrolment transferred made after 8.00 pm on the date of the close of the Roll for the relevant Division is not to be considered until after the close of polling at the election. According to s 155(1), for a claim to transfer enrolment, this is the third working day after the date of the writ.

[270]

Sections 7 and 24 commence with a statement concerning the composition of the Senate and the House of Representatives, each of which is "directly chosen by the people" of the State (s 7) and the Commonwealth (s 24). Those sections are emphatic of two factors: direct elections and a popular vote[448].
The plaintiffs did not contend that the joint reasons in Roach spoke of an individual having a right to vote protected by ss 7 and 24. The concern expressed in the joint reasons was with respect to the importance of the franchise to the maintenance of the system of government upon which the Constitution is based. The existence and exercise of the franchise were said to reflect "notions of citizenship and membership of the Australian federal body politic."[449] And it was said that such notions were "not extinguished by the mere fact of imprisonment"[450], as a prelude to posing the question in that case: whether the disqualification was for a substantial reason[451]. But nowhere was it said that what was at issue was an individual right to vote.
It was expressly stated in the joint reasons in Roach that the case concerned the "denial of entitlement to cast any vote at all", not "the existence of an individual right, but rather the extent of the limitation upon legislative power derived from the text and structure of the Constitution and identified in Lange."[452] In Lange v Australian Broadcasting Corporation[453] it was said that ss 7 and 24 "do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power."[454] The implied freedom there in question was that of communication on political matters.
In Roach Gleeson CJ did make reference to "the right to vote". His Honour said that, having regard to what had been said in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[455] by McTiernan and Jacobs JJ, he saw "no reason to deny that … the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote."[456] McTiernan and Jacobs JJ had said that "the long established universal adult suffrage may now be recognized as a fact"[457]. In context, Gleeson CJ may have been referring to what is generally described as an incident of universal adult suffrage, rather than an individualised view of "the franchise" which is protected by ss 7 and 24. His Honour had earlier referred to the dictionary definition of "universal suffrage", which, it may be expected, was given as the right of all adults to vote[458].
Earlier authority is expressive of those enfranchised in a collective sense. In McKinlay[459] McTiernan and Jacobs JJ pointed out that it was incorrect to equate "the people" referred to in s 24 with electors, or as taking account of those enfranchised individually. Rather, the term referred to a collective body. Gibbs J compared the use of the word "electors" in other sections (s 41 being one) with the use of "the people" in s 24[460].
References to "the franchise" should therefore be understood to refer, collectively, to those people who are qualified to vote. Individuals cannot be selected by legislation for disqualification. Therefore disenfranchisement or exclusion from voting refers to a disqualification of a class of people. "Chosen by the people" refers to the election of a representative by all those qualified to vote, who do vote.
The importance of the existence and maintenance of voting to the system of representative government upon which the Constitution is based must not be underestimated. But the provisions here in question are not directed to voting and do not disqualify any group of persons from voting. They limit the time for enrolment. They cannot be said to be so certain, and of such magnitude, in their effect as to affect the franchise, in the sense referred to above. What the plaintiffs complain of is that the provisions have the potential to render a person unable to vote, if he or she fails to comply with their obligations respecting enrolment. The provisions may therefore raise questions about proportionality, but they do not establish disentitlement, without more.
The argument developed by the plaintiffs, in response to these limitations, was that the legislation must ensure the maximum participation of voters. This was not a matter in issue, and therefore was not considered, in Roach. It is said to be required as an expression of "chosen by the people" and because a system of representative government requires such participation. The plaintiffs' argument therefore assumes a constitutional imperative.
The description given by Isaacs J in Judd v McKeon[461] of elections as "expressive of the will of the community", properly understood, does not support the plaintiffs' argument for a constitutional requirement regarding maximum participation. The statement was taken from the following passage of his Honour's reasons:

[276]

It is difficult to identify what is essential to representative government, not the least because ideas about it may change over time. In McKinlay Stephen J suggested that it may be possible to identify a quality which is essential to representative democracy as absent, but not possible to identify a requirement so essential as to be determinative of the existence of representative democracy[465].
In Mulholland v Australian Electoral Commission[466] Gleeson CJ observed that a notable feature of our system of government is how little of the detail of it is to be found in the Constitution and how much is left to be filled in by Parliament[467]. Gummow J has explained that the Constitution allowed for further legislative evolution in the system of representative government and thereby avoided constitutional rigidity[468]. It was necessary to rely upon later provision by Parliament, because agreement could not be reached on many matters[469].
It is necessary to bear in mind that, at the time of federation, democracy was not a perfectly developed concept[470]. No one view prevailed. If the framers of the Constitution did have a view about what was the most appropriate electoral system, they did not express it in the Constitution[471]. Any views they may have had remain at best "unexpressed assumptions" on which the framers proceeded[472].
Sections 10 and 31 of the Constitution, which, together with s 51(xxxvi), provide for laws respecting elections to the Houses, commence with the words "[u]ntil the Parliament otherwise provides". The words accommodate the notion that representative government is a dynamic institution, as Gummow J observed in McGinty[473]. In Mulholland Gummow and Hayne JJ[474] said that, because "[u]ntil the Parliament otherwise provides" allows for change, care must be taken in elevating a "direct choice" principle to a broad restraint upon legislative development. This assumes particular importance in this case.
In McKinlay Stephen J[475] said that the principle of representative democracy predicates the enfranchisement of electors, the existence of an electoral system capable of giving effect to the selection of representatives and the bestowal of legislative functions on the representatives selected. But, his Honour added, the quality and character of each of the three ingredients is not fixed or precise. In each there is scope for variety. In relation to the electoral system, it includes matters which may affect the significance of the vote given.
The unstated, but essential, premise for the plaintiffs' argument of maximum participation in the franchise is that all those entitled to vote must vote. Compulsory voting has been required since 1924. It was recognised in Judd v McKeon as a legislative choice. It is not reflective of any constitutional requirement. To the contrary, the constitutional intendment is that such matters remain subject to the exercise of parliamentary choice, as conceptions of representative government and democracy change and adapt.
Parliament may consider that compulsory voting remains appropriate to Australia, to a sense of social obligation of participation in the franchise, and therefore continues that system of voting. It is not the preferred system in many other countries which have forms of representative government. It would be unwise to assume that such a system will continue to be maintained in Australia. Compulsory voting cannot be regarded as essential to our representative government here. It would be wrong to take steps towards effectively entrenching it by requiring that legislation concerning elections ensure the maximum exercise of the franchise. It would be inconsistent with the intention expressed in the Constitution: that Parliament be free to legislate in this area from time to time.

[277]

The plaintiffs' submissions also described the effect of the provisions in question as a "burden" upon their entitlement to enrol and vote, as distinct from an outright disentitlement. Consideration of the extent of the effects of legislative measures raises questions of proportionality.
The term "proportionality" implies a relationship between things. A definition of "proportion", in the sense of being in or having a due or proper proportion, is given as the "[d]ue relation … between things or parts of a thing as renders the whole harmonious; balance, symmetry, agreement, harmony."[476] It has been suggested that proportionality is a part of, but not a synonym for, the requirement that a law be "reasonably appropriate and adapted"[477]. If this is the case, notions of proportionality may be somewhat obscured by that expression.
In the Australian constitutional context, proportionality may generally be said to involve considerations of the relationship between legislative means and constitutionally legitimate ends, or the effect of legislative means, or measures, upon matters the subject of constitutional protection or guarantee.
The expression "reasonably appropriate and adapted" was imported into Australian constitutional law some time ago from the United States constitutional context. The term "proportionality" has its origins in Germany. It has been influential in many legal systems, in Europe and elsewhere, as a principle applied to test the validity of legislation[478], particularly where legislation effects a restriction of a protected interest.
Both expressions, "proportionality" and "reasonably appropriate and adapted", are used in the joint judgment in Roach. The plaintiffs' reliance on what was said in Lange and in Roach concerning proportionality raises questions about its meaning, its use and how it might apply in the circumstances of this case.
In the joint judgment in Roach it was said that a valid disqualification of prisoners required a "substantial reason". Their Honours said[479]:

[290]

"Reasonable necessity" has long been used as a test, or legal criterion, of the validity of legislation[493]. Nowhere is this clearer than in cases involving s 92 of the Constitution and the freedom of trade, commerce and intercourse among the States which is the subject of its protection.
In Permewan Wright Consolidated Pty Ltd v Trewhitt[494] Stephen J said that if regulations affecting interstate trade are to be valid, the restrictions which they impose must be no greater than are reasonably necessary in all the circumstances. Where the restrictions were severe in their effect, it would be important for the court to look to whether there were other means of attaining the legitimate end which were less injurious to interstate trade[495].
An essential qualification to the test as stated is that the identified alternative measure be "as practicable as the law in question."[496] This is an important qualification. It helps to maintain legislative choice and avoids unwarranted substitution. The question whether other measures are as effective may be a question of fact[497]. In cases involving s 92 it may require expert economic opinion[498].
The approach discussed, which enquires as to the availability of alternative, practicable and less restrictive measures, finds clear expression in the judgment of Mason J in North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW[499], where his Honour held that the method chosen to regulate trade in milk had not been shown to be the "only practical and reasonable mode" which would achieve the objective of ensuring the high quality of the milk and protecting public health.
More recently, in Betfair Pty Ltd v Western Australia[500], the test of reasonable necessity propounded in North Eastern Dairy Co was accepted as a doctrine of the Court[501]. It was regarded as consistent with what had been said in Cole v Whitfield[502], where the Court held that the provision in question was a "necessary means of enforcing the prohibition against the catching of undersized crayfish in Tasmanian waters."
In Betfair the prohibitions against the use of betting exchanges in Western Australia were argued to be necessary for the protection of the racing industry in that State. However, in the joint judgment it was said[503]:

[293]

It follows that, although the expressions "appropriate and adapted" and "proportionate" were used, the test applied was that of the availability of alternative, practicable and less restrictive measures.
The test has been applied in cases involving the implied freedom of communication on political matters. In Lange, reference was made to the decision of the majority in Australian Capital Television Pty Ltd v The Commonwealth ("ACTV")[505], by way of explication of the second condition for validity referred to in Lange; namely, that the law be "reasonably appropriate and adapted to serve a legitimate end"[506]. Lange explained the majority decision in ACTV, which held invalid legislation which seriously impeded discussion during the course of a federal election, as grounded upon the fact that "there were other less drastic means by which the objectives of the law could be achieved."[507] There may be other views about the ratio in ACTV, but the point to be made, for present purposes, is that Lange recognises the test of proportionality just discussed: reasonable necessity assessed by the availability of alternative measures.
Cases involving s 92 proceed upon an acceptance that the freedoms guaranteed by that section are not absolute. The same may be said of other, implied, freedoms[508]. It has been pointed out that, once it is accepted that a guarantee is not absolute, some test of what constitutes a legitimate type or level of restriction must be developed[509]. This serves as a reminder of the wider concern of the test discussed, indeed of all tests of proportionality. Its concern is not just about how the objectives of the legislation in question may otherwise be fulfilled. It is used to determine the limits of legislation which restricts a freedom guaranteed by the Constitution. When alternative, practicable measures, less restrictive of a freedom, are available, it may be concluded that the measures in question are not reasonably necessary. They go too far and are disproportionate. The limits of legislative power are thereby determined. But there may be other methods of answering the question.

[297]

The legislation in Nationwide News[514] created offences for the use of words, in the nature of criticism, about the Industrial Relations Commission and its members, but it did not provide for defences usual to contempt and defamation, such as justification and fair comment. The provisions were held invalid. Mason CJ and McHugh J held that the extent of the protection provided was unnecessary and therefore disproportionate. Gaudron J agreed with this conclusion[515]. Mason CJ reached his conclusion by reference to the extent of the adverse impact of the provisions upon freedom of expression[516]. McHugh J used the same terms as had been employed in Davis - an "extraordinary intrusion" that was "grossly disproportionate to its need" - and concluded that the legislation went "well beyond" the protection required[517].
Deane and Toohey JJ discussed the nature of the interest sought to be protected by the legislation and held that the measures went "far beyond" what could be considered necessary in the public interest[518]. Mason CJ compared the measures with the level of protection under which courts function. This did not suggest that the Commission required more extrinsic powers[519]. Brennan J identified a lesser restriction which could have been effected[520].
Of the implied freedom of communication on political matters, Mason CJ said, in ACTV, that the guarantee does not postulate that it will always prevail over competing public interests[521]. The admission that the freedom cannot be regarded as absolute once again highlights the need for a test such as proportionality.
Having identified the interests that the legislation sought to advance, his Honour turned his attention to the nature of the interests in question in that case, which were to be seen as protected by the implied freedom. His Honour did so through the viewpoint of the restrictive effect that laws might have upon different kinds of communication. His Honour distinguished laws effecting restrictions upon information or ideas from those which restricted an activity or mode of communication.
In the case of the former, his Honour suggested that, speaking generally, it would be extremely difficult to justify such restrictions, implying that the nature of a protected interest may weigh heavily against any form of restriction. His Honour said a "compelling justification" would be required to warrant a restriction[522]. Even then, the measures must be no more than is reasonably necessary to achieve the public interest said to justify the restriction. His Honour added that it may be necessary to weigh the competing public interest against the restriction of freedom of communication, although, ordinarily, paramount weight would be given to the freedom[523].
On the other hand, his Honour considered that restrictions imposed on the mode of communication of ideas or information may be more susceptible of justification. In such a case, his Honour suggested, a balancing of interests may be necessary, as well as a determination whether the restriction is reasonably necessary to achieve the competing public interest. If the restriction is disproportionate in that regard, then its purpose may be taken to impair the freedom[524].
Mason CJ was alone in this approach to proportionality in ACTV. Deane and Toohey JJ approached the question of proportionality by reference to the character of the law, holding that a law with respect to the prohibition or restriction of communications would be more difficult to justify[525] than others. Their Honours regarded the effect of the legislation as going beyond what was reasonably necessary in a democratic society, because it distorted the freedom of political communication which underlies representative government. Brennan J considered the proportionality between the restriction effected by the law on the freedom and the legitimate interest the law was intended to serve[526].
Mason CJ's approach, of the identification of the particular interests in question which are the subject of the constitutional guarantees, has not been taken up in cases subsequent to ACTV. In Lange and Roach in particular, the interest said to be protected was stated in wide terms - as the system of government prescribed by the Constitution. Such differences of approach are important to an assessment of proportionality, for they define the relationship which is its subject.
It may be said, by reference to these cases, that assessments of proportionality in Australian law involve a range of discernible tests and the identification of various factors which are relevant to the relationship of the legislation in question to its purposes or to interests the subject of constitutional protection. This invites comparison with the position in countries where tests are more clearly defined and openly stated.

[298]

In Roach Gleeson CJ expressed concern about the importation of the concept of proportionality into the Australian constitutional context[527]. This was not the first occasion upon which concerns of this kind had been expressed[528]. In Mulholland Gleeson CJ had observed that the use of the term "proportionality" has the advantage that it is commonly used in other jurisdictions, in similar fields of discourse, and the disadvantage that it has there taken on different elaborations which may be imported into a different legal context without explanation[529]. However, despite his misgivings, his Honour said in Roach that he found aspects of the reasoning of the courts of other jurisdictions "instructive"[530]. Gleeson CJ's qualification in Mulholland is important. It requires that any derivation from the principle be critically analysed.
There is no doubt that the principle has a different status in other legal systems. In Germany and the European Community, to which I shall shortly refer, it has, respectively, the status of a constitutional principle[531] and a general principle of wide application. The context in which it is applied, the extent to which account is taken of legislative discretion, and the extent to which legislation is required to conform to higher principles, may differ. Nevertheless, the question to which it is directed is common to these systems and our own. It is how to determine the limit of legislative power, where its exercise has the effect of restricting protected interests or freedoms. The methods used to test the principle of proportionality are rational and adaptable. Some bear resemblance to tests which have already been utilised in this Court. Further, proportionality is a principle having its roots in the rule of law[532]. That rule is reflected in the judgments of the majority in Roach, which rejected the legislative disqualification as arbitrary and therefore disproportionate.
It should not be assumed that the application of identifiable tests of proportionality will lead to widening, impermissibly, the scope of review of legislation. The statement and explication of the tests employed in the assessment of proportionality should result in a more rigorous and disciplined analysis and render the process undertaken more clear. Once it is acknowledged that constitutional protections are not absolute, some test must be utilised in an assessment of proportionality, as has earlier been observed. It is preferable to identify how that assessment is undertaken in order to avoid the invocation of proportionality as a mere statement of conclusion.
The principle of proportionality has its clearest expression in Germany. In its earlier form, as a principle of necessity, it appeared at the end of the 19th century, as a response to excessive police powers in Prussia, although its origins are said to be more ancient[533]. Its main purpose is the protection of fundamental freedoms. Professor Jürgen Schwarze explains that[534]:

[305]

The principle applied by the European Court of Justice ("the ECJ") is substantially drawn from German law[539], although it may not be applied in the same way and the sub-principles may not be differentiated to the same degree[540]. Its principal application by the ECJ is in the sphere of freedom of economic activity[541], where the second sub-principle assumes particular importance.
The first of the three sub-principles, suitability, looks to the probable effectiveness of the legislative measure and unsuitability is rarely established[542]. Another word for suitability might be "adapted"[543], as earlier mentioned in connection with the phrase "reasonably appropriate and adapted"[544].
The test of reasonable necessity is the test more often applied by the ECJ in relation to cases involving measures which restrict the freedom of movement of goods. In a leading case, it was held that the objective of protecting consumers could have been achieved by a measure which meant a less drastic restriction of the free movement of goods[545]. An analogy with the test confirmed in Betfair, and in Lange, can be drawn. And it is pointed out that necessity does not involve only the fact that there may be a choice of alternative means, as that would deny legislative choice. The other measure has to be equally effective[546].
It is said that the sub-principle of proportionality in the strict sense is applied in a negative manner and that this serves to restrict its operation. A legislative measure will be held invalid only where it is unnecessarily harmful to the interest protected by the Constitution and is "manifestly disproportionate"[547]. How this is applied in particular cases may serve to further illuminate what is meant by that term. For present purposes, it may be observed that it is not dissimilar to statements made in Davis and Nationwide News, where the effects of the legislative measures on the relevant freedoms were said themselves to be too severe to qualify as proportionate.
As may be expected of an enquiry of this kind, factors such as the extent or severity of the restrictions effected by the legislative measures on the freedoms, or protected interests, and the objective pursued by the legislation, have been considered relevant in decisions of the ECJ and of the Federal Constitutional Court[548]. The latter Court requires that the seriousness of the effect of the legislative restriction, and the importance of the reasons said to justify it, be in adequate proportion to each other[549]. Much is said to depend upon the nature of the legislative provision and the sphere of protection of the freedom or interest involved[550].
It has also been the concern of the High Court to assess the effect of the legislative measures in question, in relation to either or both of the legislative objective and the freedom protected. Less attention has been directed to the identification of the aspect of the freedom which is the subject of the protection. A freedom protected by the Constitution is generally assumed to have a status such that a significant reason is required to be given for any serious restriction of it. Roach did not concern a protected freedom, but rather a basal concept which informs the Constitution. It was that concept which was said to be relevant to an assessment of proportionality.

[308]

It may be observed that the question appears to combine the two conditions earlier stated. The law's purpose (the "legitimate end") is that which is compatible with the maintenance of the prescribed system of government. The question is whether the law is reasonably appropriate and adapted to serve that end. So understood, the test may involve whether the operation and effect of the law's measures are reasonably necessary to that legitimate purpose. Indeed this is the approach which was taken.
In Lange the Court examined the common law rules of defamation in New South Wales by reference to whether there were other, less drastic measures by which the objectives of the law could be achieved, following the approach thought to have been taken by the majority in ACTV[553]. The Court was able to conclude that the law went no further than was necessary, for the protection of reputation, given the extended application of the law of qualified privilege[554]. It did so by adapting that law to accommodate the recognition of the constitutionally guaranteed freedom.
A distinctive feature of Lange, so far as concerns tests of proportionality, is that the Court was able to achieve proportionality through its approach to the common law. By this means, it was able to conclude that proportionality existed based upon the test of reasonable necessity and was not required to undertake the task of assessing the extent of the effect of the defamation laws upon the freedom, as had been undertaken in some of the earlier cases involved with restrictions upon freedom of political communication.
McHugh J in Coleman v Power[555] considered that the fact that the Court in Lange adopted the example of ACTV was important to understanding what was intended by the second limb of the test in Lange. This must be accepted. His Honour's interpretation of what was said about ACTV led his Honour to conclude further that the test in Lange was intended to include, not only the compatibility of the law's objective, but also the compatibility of the measures undertaken to achieve the law's objective, with the prescribed system of government[556]. A relationship between legislative measures and the maintenance of the prescribed system of government is somewhat different from the relationship involved in tests of proportionality employed in previous cases. It is not obvious that the decision in Lange was reached by an assessment involving that relationship. Nevertheless, the relationship appears to have assumed importance in Roach.
The essential difficulty with the legislative disqualification in Roach, identified in the majority judgments, was that there was no evident reason or purpose beyond the obvious intention to remove a prisoner's ability to vote. It was arbitrary and did not differentiate between serious and other offences[557]. It may not be thought that much more was required for a finding that the law was disproportionate. Indeed, in the joint judgment it was said that what can be seen to be "disproportionate or arbitrary" may not meet the requirement that it be "reasonably appropriate and adapted for an end consistent or compatible with observance of the relevant constitutional restraint upon legislative power."[558] That constitutional restraint is identified in connection with the test of proportionality, as being what is necessary to the maintenance of the prescribed system of representative government.
The disqualification in question in Roach was compared, in the joint judgment, with another provided by the Electoral Act which, however, was considered to be valid. That provision disentitled persons who were incapable of understanding the nature and significance of voting, because they were of unsound mind. Although it limited the exercise of the franchise, it was held to do so[559]:

[316]

Further, the submission does not take account of the other reason given by the JSCEM for a shortening of the "period of grace". It was said that it was necessary to obtain greater compliance with enrolment obligations, not just at the time when elections were called but also in the period between elections. The JSCEM considered that the "period of grace" worked against such an objective and encouraged people to leave enrolment to the last moment.
It cannot be suggested that the measures in question are without justification, in contrast to the disqualification in Roach. Both objects are not only compatible with the maintenance of an orderly and effective system of voting, as an aspect of the system of representative government, they are important to it. The principal object seeks to ensure greater compliance with electoral obligations.
The point made by the plaintiffs in reply is relevant to proportionality. It was put that, accepting that there may be some concerns of the kind mentioned, less restrictive means could have been adopted to address them. Thus, the test of reasonable necessity, as assessed by alternative practicable means, is raised, as it was in Lange. Such a test assumes that the measures are sufficiently restrictive to warrant a search for alternative means. This is a matter which will require separate consideration.
It was not suggested by the plaintiffs that the Electoral Act should make provision for persons to enrol or transfer enrolment at all times up to polling. Nor was it suggested that the legislation should provide that the AEC should undertake enrolments itself, which has been mooted elsewhere. The plaintiffs' case was that they should have been allowed to have their claims considered at any time during the seven days prior to closure of the Rolls, as the Act had permitted prior to the 2006 amendments.
It is not sufficient, for this test of proportionality, that an alternative legislative measure be identified. The Court must be able to conclude that that alternative measure is just as effective for the legislative purpose as the measures employed. Such a conclusion is not possible here. There is nothing to suggest that allowing the longer period before the close of Rolls would be just as effective for the purpose of encouraging compliance with enrolment obligations and, therefore, nothing upon which to conclude that the opinion of the JSCEM was wrong.
Attention is then directed to a consideration of the effects of the legislative measures - in the first place, in connection with the pursuit of the objectives of the legislation and, in the second, by reference to the interest identified in Roach as subject to constitutional protection. It is necessary, in this regard, to bear in mind that it is the effects of the legislation which are relevant, not a view of their importance to the electoral system, about which different views have been held.
It must first be observed that what is restricted by the legislative measure is an entitlement to enrol, not an entitlement to vote. Nevertheless, voting is only possible upon enrolment and it must therefore be accepted that a possible effect of the measure is that a person's ability to vote at a particular election may be lost. But the effect is only possible and the loss is temporary.
No issue is taken by the plaintiffs with the aspect of the scheme of the Electoral Act which obliges enrolment and renders it an offence to fail to do so. The provisions in question do not themselves operate to render a person unable to vote. What is necessary to bring about that result is the failure of a person to fulfil his or her obligations within a specified period, when fulfilment is not attended by any obvious difficulty. It would be a curious application of a test of proportionality if a law, otherwise valid, was invalid because Parliament should recognise that people will not fulfil their statutory obligations. It is of interest to observe that the ECJ is said to be loath to apply the principle of proportionality when it is invoked in an attempt to justify a failure to comply with Community law[568].
The denial of enrolment and voting for an election, for a legitimate reason, does not intrude too far upon the system of voting. It is, and has always been, a part of that system. It reinforces the requirement that persons qualified to vote enrol in a timely way, which is conducive to the effective working of the system. No denial of the franchise is involved. It is not possible, logically, for the plaintiffs to suggest that these provisions are incompatible, but those allowing for a few more days for enrolment are not.

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