Online enrolment receives approval from Federal Court

Keen observers of the recent Federal election here in Australia will have noted two prominent challenges to parts of the Commonwealth Electoral Act 1918 (CEA) initiated by social activist group, GetUp.

The first case involved a High Court challenge to amendments to the CEA which closed the electoral rolls earlier than had previously been the case therein supposedly denying many people the chance to enrol and subsequently vote in the election. The High Court found the amendments constitutionally invalid and struck them down. The Court is yet to publish its reasons but the transcripts of the hearing are available here, here, here and here.

The second case involved an area of law probably of more interest to Certus Legal Group and our clients. It was a challenge to the decision of the Electoral Commissioner to reject a claim for enrolment on the basis that the claimant’s name was signed with a ‘digital pen’. The CEA requires that a claim for enrolment must be signed by the claimant with his or her personal signature.

In this test case, the claimant had submitted her claim for enrolment using the website OzEnrol, established by GetUp. OzEnrol allowed a member of the public to enter their details and then to submit to the Australian Electoral Commission (AEC) via fax his or her completed claim for enrolment. Given the CEA’s requirement for a claimant’s personal signature, the website used a tool which captured the movement of a “pen” on a trackpad to become the claimant’s signature.

The challenge to the Electoral Commissioner’s decision was centred on whether the Electronic Transactions Act 1999 (ETA) applied to the CEA. Under the ETA, any requirement for a signature can be met in electronic communications if the method used in its place:

  • can identify the person and indicate his or her approval; and
  • is reliable in the circumstances.
[/list_square_grey]Noting that the AEC already accepts claims for enrolment via fax and scanned copies, the Federal Court found that the ETA did apply to the CEA and that the method used by the claimant met the requirements of the ETA. Accordingly, the claimant was validly enrolled and could vote at the election.

Although this matter directly concerned election enrolment, a situation unlikely to lead to litigation for most people, it should serve as a reminder to business of the effect of the ETA (and corresponding state legislation) on how contracts are formed and other documentation agreed. For more information on this area, please contact Certus Legal Group.