Decision in Rowe v Electoral Commissioner Expected Today

As I predicted last week, the High Court has indicated that it will make orders regarding the validity of the impugned provisions of the Electoral Act by Midday today. Obviously they will reserve their reasons for whatever ruling they make.

For what its worth I would be surprised if the challenge were successful. Drawing on Roach v Electoral Commissioner, determining the validity of legislation which inhibits the constitutional requirement for democratic elections requires a balancing process to determine the appropriateness of the restriction. The principal problem in Roach was that even people with relatively minor crimes might be prevented from voting. This made the restriction somewhat arbitrary, as the restriction was not sufficiently connected to the seriousness of misconduct.

But here we have a regime which makes it difficult (and perhaps in some cases practically impossible) for a person to register to vote after an election has been called, due to the tight timeline for registration. The chief problem as I see it is that, to some extent, this primarily affects those people who have left registration till the last minute (whilst there are no doubt many people who celebrate their 18th birthday on the day that the writs for the election are issued, those people would still have been able to register to vote from the time they were 17).

There is little doubt that the Court will find that there is a limit to the restrictions that the Parliament can put on registration for voting - so much can be garnered from Roach - but given that prudent citizens can ensure their registration under this regime I don't think this is a case where the Court will find the restriction to be unconstitutional.

[[UPDATE: 5/8/10 I was wrong. See post here.]]