Could 16 and 17 year olds have a say in the marriage law postal survey?

Update – 11 August – 6.05pm The Minister for Finance and Acting Special Minister of State, Mathias Cormann, has given statements to journalists pursuing this issue. It echoes (but more concisely) the advice of the AEC that 16 and 17 year olds are not on the roll, and so will not be able to take part in the survey.

Update – 11 August – 5.45pm The Australian Electoral Commission has tweeted to say that speculation that 16 and 17 year olds would be allowed to take part in the survey is incorrect. They refer to the practice of  only “provisionally” enrolling 16 and 17 years. I’d argue that the provisions of the Act set out below has the effect of enrolling 16 and 17 year olds, but prevents them from voting until they turn 18.

The argument can be easily resolved by an amended or new Treasurer’s Direction to the ABS.

But as it stands at the moment, I don’t think it’s as clear cut as the AEC makes it to be in their statement.

 

Could over 47, 000 16 and 17 year olds who have made an application to be on the Electoral Roll, to have practical effect when they turn 18, be entitled to a say in the ABS marriage law survey?

While 16 and 17 year olds are barred from voting, they may currently make a claim to be on the electoral roll, and would be considered to be on the roll, other than for the purpose of an election.

The Treasurer’s direction for the postal survey defines elector as:

       elector means a person:

(a)    enrolled on the Commonwealth electoral roll at the end of 24 August 2017; or

(b)   who has made a valid application for enrolment on the Commonwealth electoral roll before the end of 24 August 2017.

The Electoral Act permits 16 and 17 year olds to make a “claim” to be on the Electoral Roll. Section 100 states:

(1)  A person who:

                     (a)  has turned 16, but is under 18, years of age; and

                   (b)  would be entitled, in respect of residence at an address, to be enrolled for a Subdivision if he or she were 18 years of age;

may send or deliver a claim to have his or her name placed on the Roll for that Subdivision to the Electoral Commissioner.

Section 93 then ensures that people who have made a claim but are under 18 cannot vote until they turn 18.

But the wording does establish a position that these under 18 year olds are on the Roll – they just cannot vote.

 (3)  An elector:

                     (a)  whose name has been placed on a Roll in pursuance of a claim made under section 100; and

                    (b)  who has not attained 18 years of age on the date fixed for the polling in an election;

is not entitled to vote at that election.

Subsection 93(4) then goes on say that a person with such a claim is not taken to be on the roll only “in relation to an election”. That is, for any other purpose, say a postal survey, it might be argued they would be on the Roll.

(4)  Notwithstanding section 100 or any enrolment in pursuance of a claim made under that section, for the purposes of this Act in its application in relation to an election, a person who has not attained 18 years of age on the date fixed for the polling in that election shall not be taken to be:

                     (a)  entitled to be enrolled on a Roll; or

                     (b)  enrolled on a Roll.

According to AEC figures, 47, 805 16 and 17 year olds were enrolled as at June 2017. (The fact these are recorded in the number of electors reinforces the argument that they are counted as being on a Roll.)

The present wording of the Treasurer’s Direction definition of elector would also seem to cover 16 or 17 year olds who lodged a valid application to be on the roll before 24 August.

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