[LINK] Register Online to Vote Should be Legal

Tom Worthington 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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