[LINK] Register Online to Vote Should be Legal
tom.worthington at tomw.net.au
Mon Jul 19 10:03:52 AEST 2010
GetUp created an online "Enrole to Vote" web service
However, media reports indicate that the Australian Electoral Commission
is discouraging Australian from registering on-line to vote
This is unfortunate and ACE should be carrying out its duty to help
Australian enrol, rather than discouraging them. If hundreds of
thousands of Australians are prevented from voting as a result, the
election may be declared invalid by the courts and have to be rerun.
The Commonwealth Electoral; Act 1918 Section 98AA requires an applicant
for enrolment to:
(a) provide documentary evidence of his or her name by providing:
(i) in the case of an applicant for enrolment under section 94A or
95--his or her driver's licence number or Australian passport number; or
(ii) in any other case--his or her driver's licence number ...
This could easily be done on-line, but Section 336 states:
(1) Every electoral paper which by this Act or the regulations has
to be signed by any person shall be signed by that person with his or
her personal signature.
(2) Where a person who is unable to sign his or her name in writing
makes a mark as his or her signature to an electoral paper, the mark
shall be deemed to be his or her personal signature, if it is
identifiable as such, and is made in the presence of a witness who signs
the electoral paper as such witness:
Provided that nothing in this section shall authorize any person to
sign any electoral paper by a mark or otherwise than in his or her own
handwriting in cases where the Act or the regulations require that the
electoral paper be signed in the persons' own handwriting. ...
This would suggest the Act requires the signature to be a "personal
signature", that is an autograph (the person's name written in their own
hand). It also seems to say that this has to be done on paper and so
would preclude the use of an electronic document.
However, Section 170 allows for nominations for candidates to be in the
form of a "facsimile" of a paper form, where Section 4 Interpretation
defines this to be:
"facsimile" , in relation to a nomination paper, means:
(a) a copy of a nomination paper that has been reproduced by
facsimile telegraphy or any other means; or
(b) a copy of a copy referred to in paragraph (a). ...
Clearly this would allow a candidate to nominate using an electronic
document sent via the Internet. There would seem no good reason this
means could not also be used for a voter to register.
Australian courts now accept that electronic documents are real, legal
documents. The High Court of Australia considered the issue in 2003:
104. ... The ordinary dictionary meaning of "document" is a
printed or written paper containing information. ... No violence is done
to the object or language of s 418(3) by holding that "document"
includes information that is stored in a computer or a fax machine and
which can be printed out by pressing one or more keys or buttons. No
reason appears for thinking that Parliament intended to distinguish
between information stored on paper and information stored in the
electronic impulses of a computer that can be printed on paper by
pressing a key or keys on the computer's keyboard. ...
From: "Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal",
8 August 2002, High Court of Australia,
It seems unlikely the courts would deny Australian citizens the right to
vote, simply because they sent their enrolment form via the Internet.
Also the deadline for enrolling to vote appears unreasonable and may
also be invalid. The AEC has set a deadline to enrol to vote of 8pm
Monday, 19 July 2010. However, the Close of nominations for candidates
is ten days later:12 noon Thursday, 29 July 2010: <http://aec.gov.au/>.
In the days when the rolls were prepared manually and had to be typeset
by hand, printed well in advance and dispatched, this period made sense.
However, the rolls are now prepared by computer, electronically typeset
and laser printed. There is therefore no reason why the deadline for
enrolment need be any shorter than that for candidates. As a result it
seems likely that the courts would hold this restriction on citizens
right to vote to be invalid.
Tom Worthington FACS CP HLM, TomW Communications Pty Ltd. t: 0419496150
PO Box 13, Belconnen ACT 2617, Australia http://www.tomw.net.au
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