Why this case is important
Murphy v Electoral Commissioner [2016] HCA 36 (Murphy) is an important case for the following reasons:
1.
The High
Court clarifies the proportionality test to use in an electoral
context when determining whether laws are contrary to s.7 and s.28 of the
Constitution; and
2.
The High
Court discusses whether the structured approach to proportionality used by the
High Court in McCloy v New South Wales [2015]
HCA 34 should be extended to Constitutional contexts outside of the implied
freedom of political communication.
Murphy also represents the end of the line for
challenging current electoral laws in the Commonwealth
Electoral Act 1918 (Electoral Act)
as the plaintiffs challenged the long existing seven day enrolment and
suspension period laws.
Background
The Electoral Act details
Australia’s electoral system including how a person can enrol, transfer
enrolment, amend an enrolment detail or remove a name from enrolment. A
suspension period exists in which time a person’s name must not be added,
transferred or removed from the Electoral Roll. The suspension period runs from
8pm on the day the Electoral Rolls close to the close of the poll for the
election (suspension period laws).
When a writ for a federal election is issued, persons who are not
enrolled have seven days to lodge their application for enrolment, otherwise
they will not be on the Roll for the election and will be unable to vote.
Similarly, after the writ is issued, persons who wish to transfer enrolment
must do so within seven days if they wish to vote in the division in which they
live (seven day enrolment laws). The seven day grace period was introduced into
the Electoral Act in 1983 and has existed
since then, bar for a short period where the grace period was dramatically
shortened (see discussion of Rowe below).
The plaintiffs in Murphy challenged
the validity of the suspension period laws and the seven day enrolment laws on
the basis they are contrary to sections 7 and 24 of the Constitution. The provisions
challenged were sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5), and
118(5). The plaintiffs argued that the effect of the suspension period laws and
the seven day enrolment laws is that persons are disqualified from the popular
choice (voting) mandated by the concept of representative government provided
for in s.7 and s.24 of the Constitution, and that there is no substantial
reason for this disqualification.
Previous High Court challenges to
Electoral Act provisions
Roach v Electoral Commissioner (2007) 233 CLR 162
In 2004 the Electoral Act was amended so that prisoners sentenced to imprisonment
for three years or more were no longer eligible to vote at federal elections.
In 2006 the Electoral Act was amended again, the effect being that all
sentenced prisoners were disqualified from voting at federal elections.
The majority judges in Roach (Gleeson
CJ, and Gummow, Kirby and Crennan JJ) held, relying on the words “chosen by the
people” that the concept of representative government in s.7 and s.24 of the
Constitution includes a universal franchise, generally held by all adults. Prior
to Roach, it was thought that the
words “chosen by the people” referred merely to direct and popular choice. The High
Court majority created the following two step approach:
1.
Does the
provision effect a disqualification from the entitlement to vote? (More
generally: Does the provision inhibit or burden the system of representative
government envisaged by s.7 and s.24 of the Constitution that the parliament be
“directly chosen by the people”?)
2.
Is there a
substantial reason for exclusion in that the means adopted is proportionate to
the legitimate ends sought to be achieved?
The majority judges held that the 2006 laws preventing all prisoners
from voting were invalid, as sentences imposed for shorter periods were often
arbitrary and caused by issues such as homelessness. The laws were not
proportionate to a legitimate ends, as the criterion for exclusion was
unrelated to the seriousness of the offence.
In contrast, the 2004 laws that disqualified prisoners serving a
sentence of three years or more were held to be valid, as removing the right to
vote for serious misconduct was a “substantial reason” for exclusion from the
franchise, and the criterion for exclusion from the franchise was clearly relatable
to the seriousness of offending.
Rowe v Electoral Commissioner (2010) 243 CLR 1
In 2006 parliament amended the Electoral Act so that a claim for
enrolment had to be made by 8pm on the day of the issue of the writs to be
considered for that election, essentially removing the seven day grace period,
and only giving potential voters a matter of hours in which to lodge their
application for enrolment after the writ for the election was issued. The Act
was also amended so that transfer claims had to be made by 8pm on the day of
the closing of the Rolls which was fixed as the third working day after the
issue of the writs. The amendments were introduced to create a smoother and
more efficient electoral system.
The introduction of the 2006 laws diminished the opportunity for
enrolment that existed prior to its enactment, satisfying the first limb of the
test in Roach. The High Court then considered
whether there was a “substantial reason” for the laws. The majority judges came
to the same conclusion using a slightly different approach to the second limb
of the test in Roach. French CJ
concluded there was not a “substantial reason” as the detriment was
disproportionate to the benefits produced from a smoother and more efficient
electoral system. Gummow and Bell JJ came to the same conclusion but explicitly
used the proportionality approach of the majority in Roach. Crennan J, the final judge forming the majority, interpreted
a “substantial reason” as being a law “necessary”, “necessary” not being
limited to a law that is essential and unavoidable but also a law which was
“reasonably appropriate and adapted to serve a legitimate end”. As the laws
were not proportionate to the reasons for the amendments, the High Court
majority held the laws invalid.
The outcome in Murphy
The outcome was unanimous (French CJ and Bell J, Kiefel J, Gageler J,
Keane J, Nettle J, and Gordon J) in that all judges held the provisions
imposing the cut off for enrolment and transfer of enrolment are not repugnant
to s7 and s24 of the Constitution. However, the judges differed significantly
on how they arrived at this conclusion.
The “substantial reason” test
The second component in the Roach test
for validity, is that there be a “substantial reason” for exclusion from the
universal franchise. The requirement for a “substantial reason” can be traced
back to Brennan CJ’s judgment in McGinty
v Western Australia (1996) 186 CLR 140. In Murphy, the High Court confirmed that the proportionality test
requires and analysis of whether the law is “reasonably appropriate and
adapted”. In the context of s.7 and s.28, the law must 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”. The “reasonably appropriate and adapted” test for proportionality
has been used as the test for validity in a number of constitutional and
administrative law contexts including to determine the validity of purposive
powers, incidental powers, and powers whose exercise limits the enjoyment of a
constitutional guarantee, such as the implied freedom of political
communication.
High Court judges differ on how
to apply the “substantial reason” test
In Murphy, French CJ and Bell
J discussed the proportionality criteria set out by the High Court in the case
of McCloy v New South Wales [2015]
HCA 34, an implied freedom of political communication case. In McCloy French CJ, Kiefel, Bell and Keane
JJ adopted the European approach to proportionality in developing a three step
approach:
1.
Suitability
– whether the law had a rational connection to the purpose of the provision;
2.
Necessity
– whether there was an obvious alternative, reasonably practical means of
achieving the same purpose with a less restrictive effect on the freedom; and
3.
Adequacy
in its balance – whether the extent of the restriction imposed by the impugned
law was outweighed by the importance of the purpose it served.
The High Court in McCloy did
not discuss the application of the three step approach to proportionality
outside the context of the implied freedom of political communication. In Murphy French CJ and Bell J stated that
the McCloy three step “structured” proportionality
criteria should be used:
1.
To determine
the proportionality of laws burdening or infringing a constitutional guarantee,
immunity or freedom; and
2.
In the
case of laws burdening the representative government envisaged by s.7 and s.24
of the Constitution, the three step test may
be relevant depending on the character of the law.
French CJ and Bell J were of the view the “suitability” component of the
three step approach should be used to determine proportionality in all situations where determining whether
a law, delegated legislative instrument or administrative act is a valid
exercise of the relevant grant of power. No other judges supported the use of
the McCloy test in the context of s.7
and s.24 of the Constitution.
Gordon J and Gageler J openly opposed the use of the “structured”
proportionality approach in the context of s.7 and s.24 of the Constitution. Gordon
J questioned whether the structured approach is appropriate at all in the
Australian context, given that the judiciary cannot exercise legislative or
executive power in Australia’s separation of powers. Gordon J took particular
issue with the “necessity” stage of the structured approach, as this stage
invites courts to inquire into alternative means of achieving the same purpose,
an inquiry which has a legislative flavour to it. Even if it was accepted the
structured approach was appropriate in the Australian context, Gordon J
reasoned that there is a significant difference between using the structured
approach for the implied freedom of political communication in McCloy and the context in Murphy, as parliament is required to
enact laws to provide for an electoral system. This positive role of parliament
and the broad scope of legislative power in relation to elections “distinctly
marks out the present constitutional context from any inquiry about the implied
freedom of political communication”.
Gageler J rejected the application of the “structured” proportionality
criteria in McCloy, reiterating his
reservations about importing such a structured, prescriptive and open ended
approach into Australian Constitutional law, referring readers to his
dissenting reasons in McCloy. Gageler
J was obviously disappointed with the High Court’s continued use of the structured
proportionality criteria, writing “what is at best an ill-fitted analytical
tool has become the master, and has taken on a life of its own”.
Keane J did not find it necessary to apply the proportionality test, finding
no burden on the Constitutional mandate in s.7 and s.24 of the Constitution.
Kiefel J only briefly discussed the utility of the test in McCloy, stating that the alternative to
the three step test in determining proportionality is to ask whether the law is
“reasonably appropriate and adapted” to their legitimate end. It is not
entirely clear from Kiefel J’s analysis which approach Her Honour preferred,
however Kiefel J found that the laws were proportionate, as the effect of the
suspension period is balanced by the certainty and efficiency achieved by
having a suspension period.
Post Murphy how do I apply the proportionality test in the context of
s.7 and s.28 of the Constitution?
Is this the case of “one test to rule them all”? Will the “structured”
approach to proportionality in McCloy be
used for all proportionality tests in the Constitutional context? The answer
for now is no. While French CJ and Bell J are obvious supporters of extending
the scope of the structured approach to proportionality used in McCloy to other Constitutional contexts,
no other High Court judge in Murphy supported
this approach.
As Gordon J put it:
“It should not be assumed that, because a particular test for
proportionality has been adopted in one particular constitutional context, it
can be uncritically transferred into another context, constitutional or
otherwise, even within the same jurisdiction”.
The structured proportionality test in McCloy can safely be applied only in determining whether a law
impugns the implied freedom of political communication (see blog post on McCloy for further details). In other Constitutional
contexts, the structured proportionality test is not to be used to determine
proportionality. In the case of s.7 and s.28 of the Constitution, when applying
the second part of the test in Roach, the
proportionality test, ask whether the laws are reasonably appropriate and
adapted to achieve the identified end.
