Rowe V Electoral Commissioner-Evolution or Creationism?

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I INTRODUCTION

The majority judgments in Rowe v Electoral Commissioner are extraordinary on a number of grounds. First, they propound a theory of constitutional evolution that rivals both originalism and progressivism as a new form of constitutional interpretation. Secondly, they undermine both the principle of parliamentary sovereignty and the role of the people in constitutional change by effectively permitting the Parliament, through the enactment of legislation, to change the meaning of the Constitution and to entrench laws without a referendum under s 128 of the Constitution. Thirdly, they appear to impose upon Parliament a constitutional obligation to facilitate the breach of valid laws, which on anyone's terms is a very odd outcome.

II BACKGROUND

The case concerned the cut-off date for the enrolment of voters prior to the 2010 election. Since 1911, enrolment has been compulsory for all people eligible to vote at Commonwealth elections. (1) Failure to enrol or to register a change of address within the requisite period is currently a criminal offence. (2) From 1902 until 1983, (3) the Commonwealth electoral rolls were closed upon the date of the issue of the election writs. No new enrolments or change of address of enrolment were dealt with in the period from the evening of the day of the issue of the writs until after polling day. Equally, no challenge could be made to the validity of enrolments during that period. As a matter of practice, from the 1930s, elections tended to be announced some days before the election writs were issued, (4) with the consequence that people had an opportunity to enrol or correct their enrolment details before the writs were issued. This did not affect the application of the law, which closed the roll on the evening of the day the writs were issued, regardless of whether or not there had been a 'grace period' between the election announcement and the issue of the writs.

In 1983, Prime Minister Malcolm Fraser called a snap double dissolution election in the hope of capitalising on the Hayden-Hawke leadership tension. He wanted to hold as short a campaign as possible, so the writs were issued the day after the election was announced. A legal challenge to the closure of the rolls, relying on s 41 of the Constitution, failed, (5) but it caused the new Hawke Labor Government to change the law so that the rolls were closed seven days after the issue of the writs. (6)

This law was later amended in 2006 under the Howard Coalition Government in accordance with a report of the Joint Standing Committee on Electoral Matters, (7) which gave two grounds for making the change. The first was that permitting last minute changes to the electoral roll, when there is no time for them to be properly checked by the Electoral Commission, is conducive to electoral fraud. (8) Secondly, it was contended that the seven day grace period discourages people from enrolling or changing their enrolment when they are obliged to do so, (9) leading to the Electoral Commission wasting much time and money in attempting to get people to fix their enrolment details. (10) As enrolment figures are also necessary to determine when there needs to be a redistribution of seats, (11) having hundreds of thousands of people waiting until an election is called before they update their enrolment address details has the potential to distort the distribution of seats (creating malapportionment by laziness). The amendments restored the pre-1983 position for new enrolments, providing that the roll closed at 8pm on the day of the issue of the writs. However, it also allowed enrolment changes to be made up to three days after the issue of the writs, being more generous in this regard than the 1902-1983 position. (12)

The 2007 election was conducted on the basis of the revised law. Prime Minister Howard announced on 14 October 2007 that an election would be held and the writs were issued on 17 October 2007, giving three days for people to enrol. …