''Getup Ltd v Electoral Commissioner (2010'') was a landmark decision made by the
Federal Court of Australia on 13 August 2010 allowing Australians to enrol online in future elections. The Federal Court ruled in favour of
GetUp!
GetUp! is an independent Progressivism, progressive Australian political activism, political activist group. It was launched in August 2005 to encourage Internet activism in Australia, though it has increasingly engaged in Community organizing, ...
in their challenge of the
Commonwealth Electoral Act 1918
The ''Commonwealth Electoral Act 1918'' is an Act of the Australian Parliament which continues to be the core legislation governing the conduct of elections in Australia, having been amended on numerous occasions since 1918. The Act was introd ...
, that rejected first-time voter, Sophie Trevitt’s electronic enrolment application after her
electronic signature
An electronic signature, or e-signature, is data that is logically associated with other data and which is used by the signatory to sign the associated data. This type of signature has the same legal standing as a handwritten signature as long as i ...
was deemed invalid.
[.]
The Case
In June 2010 it was estimated that more than 1.4 million Australians were not enrolled to vote.
in the lead up to the Australian Federal election on 21 August 2010, political activists group GetUp developed a strategy to capture this market by providing an online enrolment facility, OzEnrol, which enabled users to enter the required details into an electronically submittable form, using a digital pen, mouse or laptop trackpad to sign their name. On 22 July 2010, the
Australian Electoral Commission
The Australian Electoral Commission (AEC) is the independent federal agency in charge of organising, conducting and supervising federal Australian elections, by-elections and referendums.
Responsibilities
The AEC's main responsibility is to ...
disallowed Sophie Trevitts's use of the OzEnrol tool to apply for enrolment in the electorate of Granydler, NSW
Arguments
The Commissioner claimed he acted under Section 102(1)(c) of the ''Commonwealth Electoral Act 1918'' granting him the discretion in judging whether Ms Trevitt’s enrolment application was “in order”. The criteria for reaching such a decision are outlined in Section 98(2) in particular:
:''A claim:''
:''(a) must be in the appropriate form; and''
:''(b) must be signed by the claimant;''
As a result, the Commissioner ruled Ms Trevitt’s application was not in order- citing a breach of Section 336 of the ''Commonwealth Electoral Act 1918'':
:''Every electoral paper which by this Act or the regulations has to be signed by any person shall be signed by that person with his or her personal signature.
''
The Electoral Commissioner claimed that the Act implied enrolments were to be signed by hand.
GetUp argued the electronic signature provided by Trevitt was legitimate in accordance with Section 8(1) of the Electronic Transactions Act 1999:
:''For the purposes of a law of the Commonwealth, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications.''
The Act is applicable to transactions including those “of a non-commercial nature” like that of the enrolment application.
The Commissioner also expressed concerns over the quality of electronic signatures, noting their tendency to become pixilated in comparison to those that were hand-written. In response, GetUp highlighted the Commissioner’s frequent acceptance of enrolment forms via facsimile and scanned documents sent through email, recommending applicants do so using the lowest resolution at 100 dots per inch (
DPI
A Daytona Prototype International (DPi) was a type of sports prototype racing car developed specifically for the International Motor Sports Association's WeatherTech SportsCar Championship, as their top class of car, acting as a direct replaceme ...
), thus rendering the signature quality to that comparable to one electronically produced.
Federal Court decision
Justice Perram agreed with GetUp regarding the acceptability of electronic signatures noting that it resembled one which had been faxed or emailed and thus would have been accepted by the Commissioner.
The case subsequently became a technical debate over how the ''Commonwealth Electoral Act'' and ''Electronic Transactions Act'' were to be interpreted together considering the present context. Perram J disagreed with the Commissioner’s interpretation of Section 102(1) of the ''Commonwealth Electoral Act'' allowing him the discretion to form an opinion regarding the validity of Ms Trevitt’s application. He stated that such freedom was limited to determining whether the claimant was entitled to be enrolled - which she was having fulfilled the criteria of being over 18 years of age and an Australian citizen.
Enrolment eligiblility - Australian Electoral Commission
/ref>
As a result, Perram J ruled that Ms Trevitt’s enrolment claim was “in order” due to the fact that the ''Electronic Transactions Act'' was applicable to the meaning of Section 102(1)(b) of the ''Commonwealth Electoral Act'' and therefore a digital signature fulfilled the necessary enrolment requirement. The respondent was ordered to pay the applicants’ costs and Ms Trevitt’s online claim was added to the electoral roll.
Implications
The Federal Court made its ruling in a context where the Electoral Commissioner was already accepting signatures in forms (such as facsimile, JPEG image) that were susceptible to a degree of manipulation. Perram J’s decision offers no reflection on the reliability or appropriateness of using electronic signatures; it merely discounts any form of discrimination in favour of non-electronic signature methods thus enforcing the concept of ‘technology neutrality’ as a key principle of the ''Electronic Transactions Act''. As such, the success of this test case sets a precedent for future matters relating to the legitimate use of digital signatures as a means of identity verification - an issue likely to become more prevalent as dependence on technology continues to escalate. The outcome of the case does not however consider issues such as security and fraud detection
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compensa ...
which need to be addressed before the use of electronic signatures can be safely used in e-commerce practices.
The result paves the way for a review of the electoral process and will encourage Federal and State governments to use the online medium in attempts to capture the estimated 6% of the Australian population who are not enrolled to vote. With an increased number of voters in each election, and the vast majority of them being young people (70% of those not on the electoral roll are aged between 19 and 39,) the Australian political circuit will become more competitive with policies likely to be more progressive in order to attract their votes.
This case relied heavily on litigation funding from GetUp supporters and was a major success in the realm of public interest
The public interest is "the welfare or well-being of the general public" and society.
Overview
Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefor ...
lawsuits. Further, the courts have historically played a minimal role in shaping the Australian electoral process. ''Getup Ltd v Electoral Commissioner (2010)'' was a breakthrough success as it proved the ability of the Australian community to fuel legal and political debate over issues of public interest. The court’s ruling also encourages the public to identify potential areas for change in Australian legislation and challenges the traditional assumptions of the law in a manner that reflects the 21st century and the advancements it offers.
References
{{Reflist, 30em
Federal Court of Australia cases
Election law
2010 in case law
2010 in Australian law