A high-profile independent candidate is planning legal action after the Australian Electoral Commission conceded an anomaly means some people – possibly over 100,000 – isolated with Covid may not be able to vote in Saturday’s election.
Guardian Australia understands that Monique Ryan, the teal independent candidate in Josh Frydenberg’s seat of Kooyong, will on Friday lodge an application in the federal court seeking to test the legality of a regulation that the AEC has conceded will prevent some Covid positive people in isolation on election day from being able to cast a vote.
Ryan on Thursday called for crowdfunding to cover the costs of the challenge, saying on Twitter, “we’re taking special minister of state, Ben Morton, to the federal court tomorrow”.
“We’re fighting to ensure up to 201,000 Australians with Covid can vote this election,” she wrote.
“We need $60,000 for this challenge.”
📣We’re taking Special Minister of State Ben Morton to the Federal Court tomorrow.
We’re fighting to ensure up to 201,000 Australians with COVID can vote in this election.
We need $60,000 for this challenge, and we need to raise it ASAP!
Please help:https://t.co/sJRJBzIShH 🙏
— Dr. Monique Ryan (@Mon4Kooyong) May 19, 2022
Some Australians who tested positive for Covid earlier in the week were caught in the voting eligibility anomaly. They missed the deadline to register for a postal vote but recorded a positive RAT test too early to access telephone voting.
People who tested positive for the virus from Sunday to Tuesday at 6 pm, but failed to register to postal vote by the Wednesday 6 pm deadline, could miss out on casting a ballot.
Some voters who tested positive on Tuesday had just 24 hours to register for postal voting while dealing with their diagnosis.
The Human Rights Law Centre says the anomaly “risks disenfranchising tens of thousands of Australians”.
In anticipation of Australia’s first federal election during the pandemic, the Electoral Act was amended to allow regulations to temporarily expand telephone voting eligibility – a previously only used by voters with vision disabilities and Australians working in Antarctica. The law allowed only those who test positive after 6 pm on Tuesday May 17 t,o vote by phone.
People who did not apply for a postal vote before the Wed 6 pm application deadline, haven’t voted yet, tested positive before 6 pm Tues, and are in isolation through to after election day, may not be able to vote.
— AEC ✏️ (@AusElectoralCom) May 19, 2022
The Guardian has also been contacted by affected voters who claimed they tried to register for postal voting before the deadline but were told their ballot papers would not arrive in time. They should wait until phone voting details became clear on Wednesday – only to be told they could not vote that way ultimately.
The exact number of people affected is not clear. The AEC has acknowledged that some in the cohort “may not be able to vote”. A spokesperson said there was no scope to change the voting eligibility rules because they were enacted in legislation.
“We cannot change this,” they said.
Even those who applied for a postal vote before the registration deadline are not guaranteed to receive their ballots before Saturday.
The AEC spokesperson said, “we will be doing everything we can to ensure people who applied for a postal vote will receive them” on time.
On Thursday, the Human Rights Law Centre called on the AEC “to interpret the provisions in a way that upholds the voting rights of all Australians”.
The center’s executive director, Hugh de Kretser, said, “the right to vote is the most fundamental part of our democracy” and was “enshrined in the constitution and upheld by the high court on many occasions”.
“We are alarmed that the AEC is adopting an interpretive approach that seems to be contrary to the intent of the Electoral Act. The AEC’s position risks disenfranchising tens of thousands of Australians unless it is revised. We urge the AEC to clarify its position immediately,” De Kretser said.
I’m going to guess that young people, people who speak a different language at home, etc., are VERY unlikely to have known about this.
— Dr. Monique Ryan (@Mon4Kooyong) May 19, 2022
Ryan, whose contest with Frydenberg is expected to be tight in Saturday’s poll, called on the AEC to provide a way for those affected by the anomaly to vote. She said the issue “is not hard to fix”.
“It’s safe to assume that many people who were in their sick beds with Covid didn’t know about the postal vote deadline,” Ryan tweeted.
“I’m going to guess that young people, people who speak a different language at home, etc., are VERY unlikely to have known about this,” Ryan tweeted.
Greens senator Larissa Waters wrote to Tom Rogers, the Australian Electoral Commissioner, on Thursday to express concern about the anomaly for Covid-positive voters and polling stations not being able to open due to staffing issues.
“High infection rates across the country mean that these issues could significantly impact voter turnout, particularly amongst young voters, voters from vulnerable communities, and voters in regional areas,” Waters said.
Waters sought clarification on what options would be available to electors who have tested positive before 6 pm on Tuesday but have either not registered for or not received a postal vote. She also asked for someone alone could lodge a postal vote without someone to witness or post it.
Kooyong voter Guy Miller tested positive for Covid on Monday and realized he had missed the chance to register for a postal vote on Thursday.
When his wife, Carol Miller, called the AEC, a representative offered to take Guy off the list so he would avoid a fine for not voting, she said.
“I said that’s not the problem; he needs to be able to vote somehow.”
Carol Miller claimed the AEC representative then suggested Guy take another RAT test Because it would show positive after the phone voting eligibility came; hee could vote by that method.
“The AEC is back in the dark ages,” she said.
Guy Miller added via telephone: “It’s slack. This is the first time that people have a real chance to make a change. Normally it’s a foregone conclusion in Kooying … I’d hate to be the one vote that could have swayed the election.”
