ELECTONS 2.

0
Reflections on the 2010 federal election
and the future of Australian electoral law
PETER BLACK
he federal election in August 2010 was distinctive for several reasons: following bitter internal spills two relatively
inexperienced leaders led the two major parties into the election; the Greens emerged as a major political force on the
national stage; and the cliffhanger on election night resulted in the first hung Parliament since 1940. Following Rob
Oakeshott's interminable 17 minute speech, Julia Gillard and the Labor Party were able to form government. t was also
Australia's first federal election that really did play out on the internet. ndeed, in some ways the commentary on blogs and
social media like Facebook and Twitter became the Fifth Estate, in that it kept a critical eye on both the politicians as well as the
establishment media of the Fourth Estate.
While others have and will continue to analyse
the 2010 election and the role of the internet,
in particular social media, from a political as well
as a communications perspective, one aspect that
has not been widely considered is the impact the internet and social media commonly referred
to as Web 2.0 had on electoral law in 2010 and what this may mean for electoral law in the future.
This article will outline four electoral law issues arising as a result of the internet, either directly or indirectly in the 2010 election,
and offer some suggestions as to how parliament and the courts should respond to these challenges 'moving forward'. This article
is not intended to exhaustively canvas these issues but rather aims to highlight some of the key challenges the internet poses to
electoral laws in Australia.
Direct impact of the internet
on the political process
n the 2010 election use of the internet was a major feature of the campaign strategies of both major political parties. However,
while much of the campaign jumped into the digital age, the electoral architecture that surrounded the election remained firmly in
the analogue era. That is to say while the internet was used extensively for campaigning, when it came to the mechanics of
enrolling to vote, not to mention voting itself, Australia's electoral system made no attempt to utilise the internet to increase political
participation through online enrolment or e-voting.
Online enrolment
Although the Commonwealth Electoral Act 1918 (Cth) had no express provisions allowing online enrolment, the political advocacy
organisation GetUp believed that the Commonwealth Electoral Act, when read with Electronic Transactions Act 1999 (Cth), allowed
for online enrolments. To this end, GetUp, a powerful, primarily internet-based organisation that emerged as a force in Australian
politics in the 2007 federal election,
1
set up a website, <ozenrol.com.au>, designed to facilitate a system of online enrolment. The
Australian Electoral Commissioner unsuccessfully challenged the validity of an enrolment claim submitted electronically.
2

The decision involved the enrolment claim of Sophie Jessica Trevitt, who applied to be enrolled as a voter in the electoral division
of Grayndler in New South Wales. Her application was prepared using a laptop with access to the internet and a digital pen which
can be used on the laptop's trackpad. Her application was meant to be a test case to take to the Federal Court. Ms Trevitt used a
laptop provided by GetUp and was given access to the OzEnrol site, maintained by GetUp, which at the time was not publicly
accessible. This was because GetUp had shut off the site from the public after the Electoral Commissioner had raised with GetUp
his concerns about the effect of a finding that the electronic signature process was not valid might have on the smooth and efficient
operation of the election process.
Ms Trevitt's first application was rejected because the address stated on the form was incorrect, so she completed a second
application, using the same online method provided by GetUp. The second application was also rej ected on the basis that the
electronic signature on the claim form was not sufficient.
The issue before the Federal Court was whether Ms Trevitt's electronic signature was valid under the Commonwealth Electoral Act
1918 (Cth). Section 98(2) of this Act requires that a claim form 'must be signed by the claimant.' Section 101(1) requires a person
who is entitled to be enrolled in a subdivision to immediately 'fill in and sign a claim form'. Section 336 requires that any signature
on 'electoral paper' (which includes a claim form) be signed by a person with 'his or her personal signature'.
Justice Perram observed that 'minds might perhaps legitimately differ as to whether the word "sign in the Electoral Act
encompassed digital signatures such as Ms Trevitt's', before quite rightly noting that these provisions have to be read in
accordance with the Electronic Transactions Act 1999 (Cth). That Act applies to 'transactions', defined in s 6 to include 'a
transaction of a non-commercial nature', which would naturally include transactions with the government, such as an enrolment
claim. n s 8 the Electronic Transactions Act sets out this general rule:
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 communication.
The Act also specifically deals with electronic signatures in s 11:
(1) f, under a law of the Commonwealth, the signature of a person is required, that requirement is taken to have been met in
relation to an electronic communication if:
T
(a) in all cases a method is used to identify the person and to indicate the person's approval of the information communicated;
and
(b) in all cases having regard to all the relevant circumstances at the time the method was used, the method was as reliable as
was appropriate for the purposes for which the information was communicated .
Justice Perram concluded that in this case a 'method' was used in terms of s 10(1)(a), namely Ms Trevitt's method of using the signature
tool and submitting the claim form to the Commissioner via the OzEnrol site. The main issue of the case then focused on s 10(1)(b) and its
requirement that, in all the relevant circumstances the method be as reliable as is appropriate for the purposes for which the information
was communicated.
The Electoral Commissioner was concerned about the picture quality of the electronic signature, which the judge described as
'resembling a signature which has been faxed; that is, it is plainly a signature subject to a noticeable but not serious degree of
pixilation'. Justice Perram was not persuaded by this argument because the Commissioner had a practice of accepting enrolment
claims that had been faxed or scanned and sent by email, which presumably would also have had a similar degree of pixilation:
3

accept that the signature tool would permit a signature to be forged. The question at hand, however, is the assessment of the magnitude and
significance of that risk. And here some comparison with other methods of completing the claim form are plainly justified. One starts, of course,
with the proposition that any signature may be forged. t is true that handwritten forgeries are easier to detect because of differences of pressure
points on the page, the thickness of the stroke and so on. However, the force of that point which would otherwise readily have acceded to
is much diminished in the present context when one knows that the Commissioner does in fact accept faxed and emailed claim forms.
Justice Perram therefore held that Ms Trevitt's claim form was signed by her as was required both by sections 98(2)(b) and 102(1)
of the Commonwealth Electoral Act. His Honour then held that the Commissioner was required to find Ms Trevitt's claim was 'in
order' for the purposes of section 102(1)(b) of the Commonwealth Electoral Act and entered her on the roll for the subdivision.
The decision by Perram J is plainly right; however, this decision is not the panacea for online enrolment in this country that some
may think. First, the technology used by Ms Trevitt a laptop and a digital pen is not commonly used by most people when
browsing the web. deally any system of online enrolment in the future would use another method to comply with s 11 of the
Electronic Transactions Act; preferably one that does not require the use of a particular piece of hardware (such as a digital pen or
a scanner).
Second, this decision does not place an obligation or a requirement on the Australian Electoral Commission ('AEC') to implement
its own system of online enrolment. ndeed this decision creates a situation where any number of websites or organisations can be
set up to allow people to enrol online. While GetUp may well be a reputable organisation to provide such a service, it would be easy
for other similar sites to emerge that would not necessarily be as ethical or legally informed when providing a workaround option to
facilitate online enrolment. f we are going to have online enrolment in Australia it should be provided directly by the AEC and not
by one or more other organisations. The AEC is the only entity that can provide security and certainty for online enrolment.
Third, if we are to have a useful, secure and certain system of online enrolment in Australia we still need legislative change. This
decision does not do anything to help bring about that change. f anything, it may lull the electorate, politicians and political parties
into thinking that this is not an issue that needs attention. Hopefully, however, this case marks the beginning of a process of reform
designed to modernise our electoral laws, beginning with online enrolment.
Regulation of online advertising and comment
Another way the internet is having a direct impact on Australia's electoral laws is online advertising and comment. n the last
decade the internet has become an important forum for political discussion and debate, involving more and more people in political
discourse. While some of this discussion at times is vitriolic even poisonous in both tone and substance, the internet can
nonetheless be credited with contributing to increased political engagement. As such, political parties are also beginning to realise
that the internet can be an effective way to engage with the electorate and are increasingly using the internet not just for political
advertising, but also to foster participation through blogs, Twitter, Facebook and other social media platforms. While Australia's use
of social media is quite primitive compared to the more sophisticated online media strategies of the maj or parties in the United
States, the regulation of both online advertising and social media presents a challenge for regulators.
When it comes to regulating online advertising and comment, the 2010 election highlighted at least three key issues, principally
relating to internet authorisation or tagging. n 2006, s 328A was added to the Commonwealth Electoral Act,
4
which makes it an
offence to publish a paid electoral advertisement on the internet without it being tagged with the name and address of the person
who authorised the advertisement.
The first difficulty with this provision is that social media blurs the line of what constitutes an advertisement. Although the Act does not
clarify what an 'advertisement' is, s 328A(2) expressly provides that this requirement does not apply if the matter published on the
internet forms part of a general commentary on a website. As Graeme Orr observes, it can be difficult to determine which online
activities should be considered advertisements for the purpose of this section:
On one view, an entire website may be considered an advertisement, particularly where a party pays a web designer to publish a site purely for advocacy
purposes. But other political sites are more like a partisan newspaper or a political meeting, assembling policies, speeches and chat rooms.
5

t remains unclear whether blogs maintained by party members or candidates should be considered advertisements. t also seems as
though videos published on sites like YouTube or Vimeo are not covered by the tagging requirement. While Orr notes 'the established
parties tend to tag material, either self-reflexively or because they may wish to broadcast it via television',
6
this loophole could potentially
be exploited by social media strategists in future elections. n commercial advertising, such strategists are increasingly focused on creating
viral social media campaigns, where often it is not apparent that the campaign has been designed and funded by the brand. The rationale
behind such viral social media campaigns is that if you can construct a campaign in such a way that it will appear 'go viral' organically, it is
likely to be more effective, and have much greater reach, than traditional advertisements. t is inevitable that the major political parties will
seek to use viral social media marketing in future campaigns, and at present the law would not require such campaigns to be tagged. This
poses a threat to the transparency and accountability of political campaigning in future election campaigns.
The second difficulty here is that even if the law is amended to, or interpreted as, requiring tagging on social media campaigns, the technical
limitations imposed by many social media platforms do not easily allow for such tagging to take place. The starkest example of this is
Twitter. Each tweet on Twitter can be no more than 140 characters in length, including the URL of any link contained in a tweet. Similarly, if
you are advertising on Facebook, you only have 150 characters (25 characters for the title of the ad and 135 characters for the ad body
copy).
7
The technical and political reality therefore seems to mandate that some forms of online advertising will necessarily have to be
exempted from this requirement. Of course, the alternative would be to follow Japan's electoral laws that prohibit online campaigning and
curb online voter activity during the official campaign period immediately preceding an election.
8
However, not only would such a ban be
politically and culturally unacceptable, it would also infringe Australia's constitutional implied freedom of political communication.
9

The third difficulty relates to anonymous political speech. Social media makes it easy for anonymous figures to have a considerable
impact on political discourse. ndeed, in the 2010 federal election a then anonymous blogger and tweeter, who went by the
pseudonym Grog's Gamut, was so influential that he prompted the Managing Director of the Australian Broadcasting Corporation
(ABC), Mark Scott, to redirect the ABC's federal election coverage so there was less prominence to the constant churn of updates,
and more to detailed policy analysis.
10
Unfortunately most of the anonymous commentary on the internet is not as constructive as
that of Grog's Gamut:
11

The tone of much internet debate is rancorous and personal to the point of being vicious like the 'shit sheets' of old. Partisan falsehood and
rancorousness are exacerbated by anonymity. Both the currency and experience of internet political debate suffers accordingly.
The South Australian Parliament sought to address this issue by extending that State's electoral authorisation requirements to
online comments on blogs and newspaper and magazine websites.
12
These provisions were never enforced and were ultimately
repealed after widespread public outcry. t is likely that any attempt to regulate anonymous commentary on the internet will be
unsuccessful technically as well as politically. Given this reality, it can only be hoped that online political comment will mature and
that blogs and other social media platforms will adopt a system of self regulation to improve the tone of political discourse online.
ndirect impact of the internet
on the political process
Political discourse is also changing because of the heightened role money will play in the political process as a result of the internet. This
changes how both political parties and political organisations interact with the electorate.
:ndraising
When compared to other common law countries like the United Kingdom, New Zealand and Canada, Australia's regulation of political
finance 'drifts lackadaisically, in a laissez-faire culture'.
13
While this should be a matter of some concern in its own right,
14
it is also
likely that the use of the internet for political fundraising will see an additional injection of funds into Australia's political system. Based
upon the experience in the United States, the internet will potentially have a profound impact on political fundraising in two ways.
15

First, the internet may enable candidates and parties to reach a new set of potential donors, therefore broadening the demographic
and political range of the pool of people who finance Australian elections. Second, the internet provides a new technology to reach
smaller donors. The experience of Barack Obama in the 2008 Presidential election, where 91 per cent of donations were from
individual contributions (three millions donors gave to the Obama campaign, with most of them contributing less than $250),
16

suggests that effective use of the internet will see an increase in the numbers of political donations, as well as the total money raised.
This only makes the need for campaign finance reform in this country even more urgent.
Crowdso:rcing co:rt challenges:
Rowe v Electoral Commissioner
The internet makes it easier not only for political candidates and parties to raise money, but also allows political organisations and
lobby groups to raise money and therefore be more influential in political campaigns. n the 2010 federal election, GetUp used the
internet to raise money to fund two successful court challenges to aspects of Australia's electoral laws: the challenge to online
enrolment, which has been discussed above, and a High Court challenge to constitutionality of the enrolment deadline.
The second challenge related to amendments made to the Commonwealth Electoral Act in 2006, which reduced the time within
which persons could make a claim for enrolment to vote or to transfer enrolment after elections had been called. n separate
judgments, French CJ, Gummow, Bell and Crennan JJ held that these provisions contravened the requirement, contained in ss 7
and 24 of the Constit:tion, that members of both Houses of the Commonwealth Parliament be 'directly chosen by the people'.
17

French CJ stated:
18

An electoral law which denies enrolment and therefore the right to vote to any of the people who are qualified to be enrolled can only be justified if
it serves the purpose of the constitutional mandate. f the law's adverse legal or practical effect upon the exercise of the entitlement to vote is
disproportionate to its advancement of the constitutional mandate, then it may be antagonistic to that mandate. f that be so, it will be invalid.
His Honour analysed the provisions and concluded that while the rationale of the 2006 amendments to avert the future possibility of
electoral fraud were 'legitimate in terms of the constitutional mandate', the provisions in question were not proportionate to that
end.
19

Gummow and Bell JJ, with whom Crennan J broadly agreed, also applied a proportionality test, taking account of the practical effects of
2006 amendments on the capacity of for qualified persons to participate in an election:
20

A legislative purpose of preventing such fraud 'before it is able to occur', where there has not been previous systemic fraud associated with the
operation of the seven day period before the changes made by the 2006 Act, does not supply a substantial reason for the practical operation of
the 2006 Act in disqualifying large numbers of electors. That practical operation goes beyond any advantage in preserving the integrity of the
electoral process from a hazard which so far has not materialised to any significant degree.
n separate dissenting judgments Hayne, Heydon and Kiefel JJ each held that the provisions did not contravene any limitation
imposed by the Constitution on the legislative power of the Commonwealth to fix the date and time after which claims for enrolment
or transfer of enrolment may not be considered before an election. n particular, their Honours placed emphasis on the failure of the
plaintiffs to fulfill the legal obligation of timely enrolment, attributing primary responsibility for their exclusion from voting to their
inaction rather than the changes made by the 2006 amendments.
21

The willingness of the majority in this decision to intervene in this situation and declare invalid what were essentially procedural or
administrative requirements pertaining to the closing of the electoral rolls, suggests that in the future more challenges to Australia's
electoral laws on the basis of ss 7 and 24 of the A:stralian Constit:tion are likely to be heard by the High Court. Also, the rise of
internet-based political organisations like GetUp will be able to use the power of the internet to effectively crowdsource the funding of
these challenges.
Conclusion
The internet will continue to have a profound impact on almost all aspects of modern Australian society, including our political system and
culture. The 2010 election highlighted how the internet is already challenging our existing electoral law framework, both directly and
indirectly. This article has outlined some of the ways in which Australia can meet these challenges to maintain the integrity and vitality of
our electoral system. Australia needs to introduce a formal, recognised system of online enrolment, which in turn can inform a discussion
about and maybe a possible a move to e-voting. The growing potency of social media in election campaigns also necessitates
consideration of reform to the laws relating to online advertising and comment, even as moves to greater self regulation are hopefully
underway. n addition to these direct challenges, the internet is indirectly changing political fundraising and the burgeoning influence of
political organisations and lobby groups like GetUp have brought a new dimension to political campaigns.
Given the pace of technological change will only accelerate, challenging our laws in these as well as other unforeseen ways, it is time for
Australia to accept and consider the impact of the internet on the political process. Failure to act could ultimately undermine the integrity
and vitality of our electoral laws and our political system. As Australian society embraces social media and the new communication
technologies of Web 2.0, it is time for our electoral laws to respond and move to Elections 2.0.
PETER BLACK teaches law at QUT.
2011 Peter Black

REFERENCES
1. See Ariadne Vromen, 'Political change and the internet in Australia: introducing GetUp' in Tapio Hayhtio & Jarmo Rinne (eds), Net Working / Networking: Citizen Initiated Internet
Politics (2008) 103.
2. Get:5 Ltd v Electoral Commissioner [2010] FCA 869.

3. bid [20].
4. See Electoral and Referend:m Amendment (Electoral Integrity and Other Meas:res) Act 2006 (Cth).

5. Graeme Orr, The Law of Politics: Elections, Parties and Money in A:stralia (2010) 179.
6. bid.
7. See Facebook, Guide to Facebook Ads <facebook.com/adsmarketing/>
at 1 August 2011.
8. See Matthew J Wilson, 'E-Elections: Time for Japan to Embrace Online Campaigning' (2011) Stanford Technology Law Review 4
<http://stlr.stanford.edu/pdf/wilson-e-elections.pdf> at 1 August 2011.
9. See ACTV v Commonwealth (1992) 177 CLR 106.
10. Mark Scott, 'The Quest for Truth: Quality Journalism and a 21st Century ABC' (Speech delivered at the Melbourne Writers' Festival, RMT Capitol Theatre,
2 September 2010) <www.abc.net.au/corp/pubs/documents/3001084.pdf>
at 1 August 2011.
11. Orr, above n 5, 180.
12. See s 44 of the Electoral (Miscellaneo:s) Amendment Act 2009 (SA).
13. Graeme Orr, 'Political Disclosure Regulation in Australia: Lackadaisical Law' (2007) 6(1) Election Law Jo:rnal 72, 72.
14. See Joo-Cheong Tham, Money and Politics: The democracy we can't afford (2010).

15. See Clyde Wilcox, 'nternet Fundraising in 2008: A New Model?' (2008) 6(1) The or:m Article 6, 1 <www.bepress.com/forum/vol6/iss1/art6/> at 1 August 2011.
16. Martin Dupuis & Keith Boeckelman, Barack Obama: the new face of American 5olitics (2008) 131.
17. Rowe v Electoral Commissioner [2010] HCA 46.
18. bid [2].
19. bid [78].
20. bid [167].
21. See bid [187] per Hayne J.