Electronic Voter Enrolment: Getup Ltd v Electoral Commissioner

Following their victory in the High Court two weeks ago (in Rowe v Electoral Commissioner), which secured the ability of an estimated 100,000 Australians to vote, GetUp! have had another victory. This time the number is not so grand. It’s just one. But it is an important one.

As a part of its policy to foster greater representative democracy, GetUp! created a website called http://www.ozenrol.com.au/. The website allowed people to enroll to vote online using an electronic signature (say, using a touchpad). But earlier this year the Electoral Commissioner told GetUp! that this website would not fly because enrolments had to be signed by hand.

Following this, GetUp! took the ingenious step of shutting down the site from public access and orchestrating a carefully planned test case. 19 year old Sophie Trevitt was handed a laptop and a digital pen in the foyer of the Westin Hotel in Sydney. With a Macquarie Banker watching over to authenticate her signature, Sophie used the digital pen and the Ozenrol site to enrol to vote.

Of course the Commissioner duly denied her registration. But last week in the case of Getup Ltd v Electoral Commissioner [2010] FCA 869, Perram J in the Federal Court set aside that decision and found that her application for registration was “in order”.

His Honour found that the Electronic Transactions Act 1999 (Cth) applied to the Commonwealth Electoral Act 1918 (Cth) and that therefore enrolling on the website was a perfectly acceptable manner of registration.

So in the span of two weeks GetUp! have not only secured a protection for Australians to get more than one day to enrol after an election is announced, but also for us to do it online.

I wonder how wise the High Court were to the fact that electronic enrolment is a possibility when they made their determination that the legislation in Rowe was not “reasonably appropriate or adapted”.

The High Court was told in submissions in Rowe that the second plaintiff, Douglas Thompson, “had tried to enrol online and had been denied”. So they may have assumed that electronic registration was an impossibility (though one would have hoped that one of the parties mentioned the other litigation in their written submissions). It will be interesting to see whether the issue of electronic enrolment gets a mention when the decision in Rowe is handed down.

So, subject to appeals and amendments, we will be looking forward to the site being up and running next election. In any event, it seems the Electoral Commission is still losing its fight with GetUp! to prevent all those pesky Australians from voting.