Are They On? Has the AEC got it wrong on 16 and 17 year olds being entitled to a say in marriage equality survey?

Update: 17 August 2017  – Without conceding the argument, yesterday the Minister for Finance issued a statement and amended direction. For abundance of clarity and avoidance of doubt, the amended direction limits the postal survey to those 18 years and over at the end of 24 August.

The statement and direction followed the validation of the arguments put forward in this piece by a range of respected constitutional and electoral law academics.

 

The question of whether 16 and 17 year olds were entitled to be included in the ABS marriage equality postal survey was raised in this blog, and on Twitter, most significantly by Chris Gentle

On Friday afternoon, the Australian Electoral Commission (AEC) issued a statement to dismiss this possibility.

There has been speculation that 16 and 17 year olds will be allowed to participate in the marriage survey. This is not correct. The survey instruments will be sent to those who are on the roll; 16 and 17 year olds are not on the roll.

The normal enrolment processes apply – 16 and 17 year olds are not added to the Commonwealth electoral roll until they turn 18. They are provisionally’ enrolled until they turn 18. Under section 90B of the Commonwealth Electoral Act the AEC only provides the details of electors that are enrolled, not provisionally enrolled. Section 90B is the AEC’s authority to provide the roll to the ABS, therefore 16 and 17 year olds will not be included in the Australian Marriage Law Postal Survey.

Now this may be what the AEC does in practice. If it is, it is significantly at odds with what is supposed to happen if the Commonwealth Electoral Act is followed properly.

For the following, I am expanding on my earlier argument, and am indebted particuarly to the Twitter contributions of Michael Maley, a former senior official of the AEC and respected election administrator and commentator, and to the Hearsay podcast, for finding and drawing to my attention the 2010 Explanatory Memorandum. Naturally, they’re not responsible for any errors in my argument.

I appreciate that this effort can quickly be made redundant by a new or amended Treasurer’s Direction, which limits participation to those on the roll who are aged 18 years or over. For that reason, I think any legal effort to confirm or advance the standing of a 16 or 17 year old would be quickly headed off by such action.

So, by arguing this, I do not anticipate that 16 and 17 year olds will be allowed to take part – though I think there is a case to be made that they should take part.

But it’s not just an academic exercise either.

It’s a lesson in what happens when you try to be too clever by half and draw up a minimalist instrument, which relies on administrative practice and not the letter of the law.

And if the publicity given to the possibility alerts 16 and 17 year olds to their right to make an early claim for enrolment, then that’s a valuable exercise in itself.

So here goes.

First, the Electoral Act does not create a status of provisional enrolment for 16 and 17 year olds.

Section 4(1) of the Act says:

“provisionally enrolled ” has the meaning given by subsection (1B).

Subsection 4(1B) states:

A person is provisionally enrolled if the person is provisionally enrolled under section 99B.

Section 99B deals with provisional enrolments for applicants for citizenship. Its purpose is to facilitate voting by people who will become citizens between the issuing of a writ for an election and polling day. It does not address enrolment of those under the age of 18.

That’s dealt with in section 100.

Section 100 allows 16 and 17 year olds to make a claim to be on the roll:

  (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.

 (2)  A claim made under subsection (1) shall be treated as a claim for enrolment for the Subdivision to which the claim relates and the provisions of sections 102, 103 and 104 apply in relation to the claim as if the person making the claim were 18 years of age and the claim were made pursuant to section 101.

Sections 101 and 102 sets out how any ordinary claim for enrolment by those over the age of 18 is to be handled. Section 102 is long and detailed – read it here – but its effect is if your claim is in order then you are put on the roll. There is nothing to qualify the status of an under 18 year old here. Your paperwork’s in order? You’re on the roll.

(Barriers to them actually voting are provided elsewhere.)

Section 103 provides for offences if an electoral officer does not process a claim properly.

Section 104 is the provision by which silent electors may have their address removed from the roll if they believe their personal safety would be at risk from publication. Giving a 16 and 17 year old explicit coverage of section 104 to have their address removed from the Roll would hardly seem necessary if they were never on the roll on the first place.

In 2010, when amending section 100 to allow 16 year olds to make a claim for enrolment in addition to 17 year olds (who have had the right since 1983), the Explanatory Memorandum for the amending bill explained the enrolment status of 17 year olds thus:

Section 100 of the Electoral Act provides that a person who is 17 years of age may make a claim for enrolment. While the person is ‘enrolled’, there is no ‘right’ to vote due to the operation of paragraph 93(3)(b), subsection 93(4), paragraph 208(2)(b) and subsection 221(3).

The Explanatory Memorandum is prepared by the Office of Parliamentary Counsel, the office that drafts legislation, to explain the effect of legislation in plain language.

Section 93 sets out the right to enrolment and to vote. Notice it makes a distinction between enrolment and voting.

  1. Persons entitled to enrolment and to vote

             (1)  Subject to subsections (7) and (8) and to Part VIII, all persons:

                     (a)  who have attained 18 years of age; and

                     (b)  who are:

                              (i)  Australian citizens; or

                             (ii)  persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984:

                                        (A)  on the roll for a Division; or

                                        (B)  on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922 ;

shall be entitled to enrolment.

[Part VIII is the part which includes section 100. So this entitlement is subject to the inclusion of those 16 and 17 year olds who make a claim and are enrolled pursuant to that claim.]

Subsection 93(2) then goes on to lay the framework for qualification of the right to vote for those who are enrolled.           

(2)  Subject to subsections (3), (4), (5) and (8AA), an elector whose name is on the Roll for a Division is entitled to vote at elections of Members of the Senate for the State that includes that Division and at elections of Members of the House of Representatives for that Division.

Only subsections (3) and (4) are relevant to the under 18 question:

(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.

(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.

If you read subsection 93(3) in its natural sense – An elector whose name has been placed on a Roll in pursuance of a claim made under section 100; and 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 – then 16 and 17 year olds are on the roll, they are just not allowed to vote.

Again, section 93(4) only limits its application “in relation to an election”.

Subsections 208(1) and (2) provide that:

Certified lists of voters

             (1)  The Electoral Commissioner must arrange for the preparation of a list of voters for each Division and must certify the list.

             (2)  The list must include the name of each person who:

                     (a)  is on the Roll for the Division; and

                     (b)  will be at least 18 years old on polling day; and

                     (c)  is not covered by subsection 93(8AA) (sentences of imprisonment).

The Certified List of Voters is a subset of the roll, and when printed, is the physical roll on which your name gets marked off when you turn up to vote.

As paragraph 208(2)(b) requires the list to include the names of those who will be at least 18 years old on polling day, it must be seen as a qualification on the extent of the “Roll for the Division” referred to in paragraph 208(2)(a). That is, the roll includes everyone, including 16 and 17 year olds, and must be reduced to a list of only those aged 18 years and older.

Section 221 establishes the entitlement for those elections at which an elector may vote.

Subsection 221(3) provides:

(3)  For the purposes of this section, the electoral Rolls in force at the time of the election are conclusive evidence of the right of each person enrolled on the Rolls, other than:

                     (a)  a person whose name has been placed on a Roll because of a claim made under section 100 and who will be under 18 on the date fixed for the polling in the election; or

                     (b)  a person who is covered by subsection 93(8AA) (sentences of imprisonment);

to vote as an elector, unless a person shows by his or her answers to the questions prescribed by section 200DI or 229 that he or she is not entitled to vote.

The provision establishes a legal position where a person under 18 can be on the Roll, but their presence on the Roll is not evidence of an entitlement to vote.

Section 55, which is part of the Act dealing with redistributions, again provides that those on a roll and under 18 are not to be regarded as an elector for the purposes of that part:

(2)  A person:

                     (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;

shall be taken, for the purposes of this Part, not to be an elector.

So the short of it is:

  • Section 100 says 16 and 17 year olds may make a claim for enrolment, and if they do, they’re to be treated as if they were 18 for the purposes of enrolment.
  • Section 102 says if their claim is in order they’re to be added to roll for the Division in which they live.
  • Section 104 says their address can be removed from the roll if their safety is at risk.
  • Section 93 says that while they’re on the roll, they can’t vote at an election.
  • Section 208 says while they’re on the roll they have to be removed before the certified lists are printed and used for voting.
  • Section 221 says even though their name is on the roll they can’t use it as evidence of a right to vote.
  • Section 55 says even though they’re on the roll, they can’t be counted towards the number of electors used in working out redistributions.

So, to paraphrase Buzzfeed’s “Is It On?”question: Are They On? I say yes.

 

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4 thoughts on “Are They On? Has the AEC got it wrong on 16 and 17 year olds being entitled to a say in marriage equality survey?

  1. A couple of observations. First, @hearsaycast has also tracked down the Explanatory Memorandum from the Commonwealth Electoral Legislation Amendment Act 1983, which clearly stated that 17 year olds would be “on the Rolls”. (I should have remembered that, even from 34 years ago, as I wrote that part of the Explanatory Memorandum. In those days, such Memoranda were prepared by the agency preparing the legislation, while the Office of Parliamentary Counsel drafted the actual Bill.)

    Secondly, it’s not necessarily the case that if this matter were litigated successfully and the AEC were ordered to follow the Act and include the 16 and 17 year olds on the roll, it would be easy for the government then to change the Treasurer’s Direction to exclude them from the plebisurvey. There would be a cost to them in doing that, from several angles, not the least being that there is already an argument being run that having a postal ballot discriminates against the young in favour of the old. (This strikes me as a case where a 17 year old who would hit the legal age for marrying within a year has a greater interest in the outcome than, say, a nonagenarian.) It’s one thing not to give someone a right in the first place, it’s another thing to take it away, even if it may have been granted accidentally. And there would clearly be people in the government, including the PM, who support the Yes case and might not have too much of a problem with including younger voters.

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