Dent and Daryl Wight as an Australian Electoral Officer
[2007] AATA 1985
•23 November 2007
CATCHWORDS – ELECTORAL ROLL –
refusal of application to be enrolled as an itinerant elector
– whether enrolled in name shown as current name on application or whether in name by which identified – whether name fictitious or not the name by which applicant usually known – whether enrolment in that name contrary to the public interest – decision set aside and substituted.
Administrative Appeals Tribunal Act 1975 ss 37, 43 and 43(1)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Births, Deaths and Marriages Act 1996 ss 4(1), 12, 22(1), 25(1), 24, 28(1), 28(2), 28(3), 29(1), 29(2)(a), 29(2)(b), 29A and 30
Commonwealth Electoral Act 1918, ss 4(1), 56, 79, 81, 82, 83, 83(1), 83(2), 90A, 90A(1), 90A(2), 90B, 90B(1), 90B(2), 90B(4), 90B(10), 91A, 91A(1), 91A(1A), 91A(2), 91A(2AA), 93, 93(1), 93(2), 93(7), 93(8), 93A, 93A(1)(b), 93A(2), 93A(2)(a), 93A(2)(b), 93A(3), 94A, 95, 95AA, 96, 96(1), 96(2), 96(2)(c), 96(2)(d), 96(2A), 96(2A)(a), 96(2AA), 96(2AB), 96(2C), 98, 98(2)(c), 98A(2), 98AA, 98AA(1), 98AA(1)(a), (b) and (c), 99(3), 99A, 100, 100(1), 101, 101(1), 102, 102(1), 102(1A), 104, 104(1), 105(1)(a), (c), (e) and (g), 108, 120(6), 121, 121(b), 121(1)(a), 166, 166(1) and 166(6)
Financial Transaction Reports Act 1988 ss 3(1), 4, 7, 18, 20A and 21(1)(c)
Freedom of Information Act 1982 s 36(1)(b)
Public Service Act 1999
Sex Offenders Registration Act 2004 s 63(1A)
Electoral and Referendum Regulations 1940, rr 5A, 8, 12 and 12(2), Schedules 1 and 2
Financial Transactions Reports Regulations rr 3, 3(2), 3(3), 4, 4(1)(a), 4(1)(b)(i) and 4(1)(b)(iii)
Australian Securities and Investments Commission v Donald (2003) 136 FCR 7; 203 ALR 566
Barlow v Bateman (1730) 3 P Wms 65
Du Boulay v Du Boulay [1869] 2 AC 430
Earl Cowley v Countess Cowley [1901] AC 450
In re Parrott v Cox [1946] 1 Ch 183
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
The King v The Inhabitants of Billinghurst (1814) 3 M & S 250
Wakefield v Wakefield (1807) 1 Hag Con 893
DECISION AND REASONS FOR DECISION [2007] AATA 1985
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/5484
GENERAL ADMINISTRATIVE DIVISION )
Re ARTHUR DENT
Applicant
And DARYL WIGHT AS AN AUSTRALIAN ELECTORAL OFFICER
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 23 November 2007
Place: Melbourne
Decision:The Tribunal:
1.sets aside the decision of an Australian Electoral Officer dated 31 October 2007; and
2.substitutes a decision that:
(1)the application for enrolment is granted; and
(2)the name of Albert Langer will be entered on the Roll for the Subdivision ascertained by an Australian Electoral Officer in accordance with s 96(2A) of the Commonwealth Electoral Act 1918.
S A FORGIE
Deputy President
REASONS FOR DECISION
At some time in 2005, the applicant decided that he would be known by the name of Arthur Dent rather than by the name that he had borne since his birth i.e. Albert Langer. I will refer to him as Mr Dent in this matter as I understand that to be his preference and to be the name by which he is now known among his family, friends and some more distant associates.
Mr Dent applied for review of a decision of Mr Daryl Wight, who is an Australian Electoral Officer (AEO) under the Commonwealth Electoral Act 1918 (Act). Mr Wight made his decision on 31 October 2007 to the refuse Mr Dent’s application for enrolment. He relied on ss 96 and 93A of the Act. The central issue turned on whether Mr Dent should be enrolled under the name of Arthur Dent and whether that name is an inappropriate name within the meaning of s 93A of the Act. The basis of the decision was that it was an inappropriate name and that Mr Dent’s claim should be refused as a result.
I have considered whether the name of an applicant under s 96 is the name by which he or she now calls him or herself or whether it has another meaning. I have decided that the reference in s 96 to the applicant’s name is a reference to the name in which the applicant for enrolment is able to identify him or herself in accordance with the Act and the Electoral and Referendum Regulations 1940 (Regulations). It is that name that is then considered in light of the requirements of s 93A to determine whether it is inappropriate within the meaning of that section.
For the reasons I have set out below, I have decided to set aside Mr Wight’s decision and to substitute a decision that Mr Dent’s application for enrolment is granted and that the name of Albert Langer be added to the Roll for the Subdivision ascertained by an Australian Electoral Officer in accordance with s 96(2A) of the Act.
BACKGROUND
On the basis of the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents) and his oral evidence, I find that a Divisional Returning Officer wrote to Mr Dent on 19 August 2002.[1] The Divisional Returning Officer referred to Mr Dent as Albert Langer. He advised Mr Dent that he had previously informed that he might be required to remove his name from the Roll because it appeared that he was no longer living at his enrolled address and might not have lived in the electoral Subdivision for at least the previous month. Although he had asked Mr Dent to respond if he believed that he was entitled to remain on the Roll, Mr Dent had not done so. Consequently, the Divisional Returning Officer had removed the name of Albert Langer from the Roll.
[1] T documents at T3, 10
On 17 October 2007, Mr Dent lodged a form with the AEC. The form was headed “Electoral enrolment for persons with no fixed address”. When asked for his “current name”, Mr Dent wrote that his family name is Dent and his given name is Arthur. He gave his last enrolled address and advised that he had changed his name since he was last enrolled. His previous name, Mr Dent advised on the form, was Albert Langer. He gave his date of birth. When asked to provide a short statement of reasons to support his application, Mr Dent wrote:
“I am experiencing homelessness. Do not have access to safe & secure housing, do not have a permanent home I intend to return to or where I intend to live temporarily & have lived for one month and am an Australian citizen aged over 18.”[2]
[2] T documents at T4, 11
Mr Dent advised on the form that he has been granted Australian citizenship and that he was also an eligible British subject who was enrolled on 25 January 1984. With regard to Australian citizenship, he advised that it had been granted “Under previous name, do not have copy with me”.[3] With regard to his being an eligible British subject, he advised that he had been enrolled “under previous name”.[4] Question 10 on the form asked Mr Dent whether he had an Australian driver’s licence as proof of his identity for Commonwealth electoral enrolment. Mr Dent wrote the number of the driver’s licence that has been issued to him in Victoria and advised that it had bee issued “under previous name”.[5]
[3] T documents at T4, 12
[4] T documents at T4, 12
[5] T documents at T4, 12
Also on 17 October 2007, Mr Dent lodged a second form. It is entitled “Request by an elector for address not to be shown on the electoral roll”. Mr Dent gave the same details of his current name, previous name and date of birth as in the first form. He supported his request with a statutory declaration setting out his concerns.[6]
[6] T documents at T6, 14
On 19 October 2007, an AEO, Mr Daryl Wight, wrote to Mr Dent advising that he was required to consider matters covered by s 98A(2) of the Act.[7] In particular, he advised Mr Dent that he had to consider whether the name under which he sought to be enrolled is fictitious, frivolous or not the name by which he is usually known and whether “including your enrolment claim would be ‘contrary to the public interest’.”[8] Mr Wight said that Mr Dent had an opportunity to provide evidence that the name he sought to have included was not fictitious, frivolous or not the name by which he is usually known. Mr Dent would have to provide evidence that included:
“… formal documents such as vehicle registration details, income tax returns, Medicare Card, Pensioner Concession Card, Health Care Card, bank account details and Council notices. I am seeking this evidence under subsection 102(1A) of the Act.”[9]
[7] Section 93A(2) requires consideration of similar issues. I have considered the relevant issues under that section as it applies to the inclusion of a person’s name in a Roll under Part VII. That is the Part within which s 96 falls. Section 96 relates to itinerant electors and so to Mr Dent who describes himself as homeless. Section 98A(2) applies to the inclusion in a Roll or the transfer to the Roll of a person’s name under a provision of Part VIII. There is no difference of substance between the two provisions.
[8] T documents at T9, 23
[9] T documents at T9, 23. At the hearing, nothing turned on the power on which Mr Wight relied to make enquiries. I note, however, that s 102(1A) provides that “Before dealing with a claim under paragraph (1)(b), (ba) or (c), a Divisional Returning Officer may make any inquiries the officer thinks necessary.” The claim that is dealt with under those paragraphs is a claim which “… pursuant to section 101, a Divisional Returning Officer for a Division receives … for enrolment or transfer of enrolment for that Division …”: Act, s 102(1). Section 101(1) provides that, with the exception of qualified Norfolk Islanders “… every person who is entitled to be enrolled for any Subdivision, otherwise than by virtue of section 94, 94A, 95, 96 or 100, whether by way of enrolment or transfer for enrolment, and whose name is not on the Roll, shall forthwith fill in and sign a claim and deliver the claim to any Divisional Returning Officer or Australian Electoral Officer.” (emphasis added) As Mr Dent applied for enrolment under s 96, it does not come within the purview of s 101 and so cannot be regarded as a claim coming within the purview of s 102. Therefore, there may be some doubt whether Mr Wight could rely on s 102(1A) to make his inquiries but it is not relevant in this case to go on to consider the basis of any power he had to make enquiries.
On 29 October 2007, Mr Dent wrote to the AEC regarding Mr Wight’s letter. Among the points he made was that, if he were enrolled as a silent voter, he would not have to publish his current residential and postal addresses in his nomination as a candidate for election as a Senator. He referred to s 166(6) of the Act.[10]
[10] T documents at T10, 25
At the hearing, Mr Dent called a number of witnesses to give evidence to support his statement that he has, since a date in 2005, he has been known as Arthur Dent by them. They also gave evidence that they had heard others refer to him by that name. On occasion, they had also lapsed into calling him Albert but that was only because they had known him for so long as Albert Langer. Generally, they refer to him as Arthur and know that is the name he regards Arthur Dent as his name. I accept that Mr Dent is known as Arthur Dent among these people. They include his medical practitioner, a legal practitioner who has undertaken work for him from time to time, members of his family and his friends. The legal practitioner has a trust account ledger in the name of Arthur Dent and I accept that this relates to the applicant in this case.
On the basis of his evidence, I also accept that Mr Dent has been engaged in proceedings in the Victorian Civil and Administrative Tribunal under the name of Arthur Dent. His application to the Federal Court that the AEC enrol Mr Langer forthwith was in the name of Arthur Dent.
On the basis of Mr Dent’s note on his application for enrolment, I find that the name shown on his driver’s licence and on his certificate of Australian citizenship is Albert Langer.
LEGISLATIVE FRAMEWORK
The Rolls and their maintenance
The Act regulates a range of matters impinging on the election of Members and of the House of Representative and of the Senate in the Parliament of the Commonwealth of Australia (Parliament). It provides that there is to be a Roll of the electors[11] for each State and Territory[12] as well as for each Division, into which each State and the Australian Capital Territory are distributed[13] and each Subdivision into which each Division is divided by the Australian Electoral Commission (AEC).[14] The form that the Rolls are to take is set out in s 83 and I will return to this below.[15] Subject to very limited exceptions, a person is not entitled to have his or her name place on the Roll for more than one Subdivision, for a Subdivision other than that in which he or she lives or in respect of an address other than that in which he or she is living when the claim is lodged.[16]
[11] An “elector” is a person whose name appears on a Roll as an elector: s 4(1)
[12] s 81
[13] s 56
[14] s 79 and s 82
[15] See [17] below
[16] s 99(3)
There are a number of provisions of the Act that regulate the manner in which the Rolls are maintained. A Divisional Returning Officer, for example, may alter any Roll to correct a mistake or omission, reinstate any name removed by mistake or remove the name of a deceased elector.[17] Complementing the power to alter any Roll is the requirement that the Registrar-General shall give each Divisional Returning Officer in the State a list of the names, addresses, occupations, ages and sexes as well as dates of death of all persons of the age of 17 years and upwards whose deaths have been registered during the preceding month in respect of the particular Division.[18] The Registrar-General is the Registrar-General or other Principal Officer of a State who is charged with the duty of registering deaths occurring and marriages celebrated in each State.[19]
Qualifications and disqualifications for enrolment and processing a claim or application for enrolment
[17] ss 105(1)(a), (c), (e) and (g)
[18] s 108
[19] s 4(1)
Part VII of the Act sets out the qualifications that a person must have to be entitled to be enrolled and to vote as well as those circumstances in which a person is disqualified from being enrolled or from voting. Subject to exceptions specified in ss 93(7) and (8) and in Part VIII of the Act, s 93(1) provides that all persons who have attained the age of 18 years and who are either Australian citizens or persons who were once described as British subjects and whose names were on a Roll before 26 January 1984, are entitled to enrolment. Subject to exceptions that are not relevant in this case, “…an elector whose name is on a 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 Representative for that Division.”[20]
[20] s 93(2)
Apart from those who are entitled for a reason to which I refer in the following paragraph, every person who is entitled to be enrolled for any Subdivision must fill in and sign a claim form and deliver it to any Divisional Returning Officer or AEO.[21] Section 102 sets out the action that a Divisional Returning Officer for a Division must take on receiving a claim. If satisfied that the claim is in order and that the claimant is entitled, in respect of residence at an address, to be enrolled for a Subdivision of that Division, the Divisional Returning Officer must forthwith enter the name of the claimant on the Roll for the Subdivision together with the information required by s 83. As a rule, the Roll:
“… shall set out the surname, Christian or given names and place of living of each elector and such further particulars as are prescribed.”[22]
The Roll shall not set out the elector’s place of living where the elector is an eligible overseas elector or an itinerant elector.[23] Section 104(1) permits a person to request that “his or her address not be entered on the Roll for the Subdivision for which the enrolment is claimed” where that person is concerned that disclosure would place at risk his or her personal safety or that of his or her family.
[21] s 100(1)
[22] s 83(1)
[23] s 83(2)
A person may apply for enrolment from outside Australia,[24] if the spouse or child of an eligible overseas elector,[25] is a qualified Norfolk Islander,[26] has made a provisional claim for citizenship[27] or is 17 years of age and would be entitled to be enrolled at a particular residence if 18[28] even though they do not meet the qualifications set out in s 93.
[24] s 94A
[25] s 95
[26] s 95AA
[27] s 99A
[28] s 100
Section 96 applies to a person who is in Australia but who does not reside in any Subdivision and so who is not entitled to be enrolled for any Subdivision. Such a person may apply to the AEO for a State for enrolment under s 96 for a Subdivision in that State. The person’s application must, under s 96(2), be:
“(a) in the approved form; and
(b)signed by the applicant; and
(c)attested to by a person referred to in paragraph 98(2)(c) (but see subsection (2AA)); and
(d)supported by the evidence of the applicant’s identity that is required by the regulations (but see subsection (2AB)).”
The requirement in s 96(2)(c) “does not apply once the regulations in relation to evidentiary requirements for enrolment are in operation.”[29] That is the effect of s 96(2AA) but the expression “evidentiary requirements for enrolment” is not defined in the Act. Section 96(2AB) makes it clear that:
“To avoid doubt, the requirement in paragraph (2)(d) does not apply unless regulations are in operation for the purposes of that paragraph when the application is made.”
[29] s 96(2AA)
Given the place of s 96(2)(c) in s 96, the reference to regulations would seem to be a reference to the regulations referred to in s 96(2)(d). Those regulations are intended to be regulations regarding “evidence of the applicant’s identity” and so appear to meet the description of “regulations in relation to evidentiary requirements for enrolment”. That this is the correct interpretation is supported by the scheme of
s 96(1). That scheme, supported by ss 96(2AA) and (2AB), seems to be that the application for enrolment must be in the approved form and signed by the applicant. If there are regulations in relation to evidentiary requirements for enrolment, the application must be supported by evidence of the applicant’s identity as they require. If there are no such regulations in relation to evidentiary requirements for enrolment, the application must be “attested to” by an elector or a person entitled to enrolment and so a person referred to in s 98(2)(c). That would mean that the elector or person entitled to enrolment must affirm the validity of the information in the application. That follows from the ordinary meanings of the word “attest” when used as a verb as it is in s 96(2)(c):
“… 1 to affirm of be proof of the truth or validity of something. 2 to be evidence of something …
▪ attest to something to certify that it is so; to witness or bear witness to it, especially by giving a sworn written or verbal statement.”[30]
[30] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Section 96(2A)(a) requires the AEO to “cause the name of the applicant to be added to the Roll” for the Subdivision for which the applicant last had an entitlement to be enrolled, if he or she had such an entitlement. There are other Subdivisions to which the name may be added but only s 96(2A)(a) has any relevance in this case and it is the Subdivision for which Mr Dent applied for enrolment.
Section 93A applies to the inclusion of a person’s name in a Roll under Part VII, and so under s 96, of the Act. Sections 93A(2) and (3) are relevant in this case and provide:
“(2) A Divisional Returning Officer or Australian Electoral Officer may refuse to include a person’s name in a Roll if the Divisional Returning Officer or Australian Electoral Officer considers that the name:
(a)is fictitious, frivolous, offensive or obscene; or
(b)is not the name by which the person is usually known; or
(c)…
(3)A Divisional Returning Officer of Australian Electoral Officer may refuse to include a person’s name in a Roll if including the name in the Roll would be contrary to the public interest.”
Identification for enrolment
Section 98AA specifies that any regulations made to implement a requirement under either Part VII or Part VIII in relation to “identification for enrolment”:
“… must require an applicant for enrolment to:
(a)provide documentary evidence of his or her name by providing:
(i)in the case of an applicant for enrolment under section 94A or 95 – his or her driver’s licence number or Australian passport number; or
(ii)in any other case – his or her driver’s licence number; or
(b)if:
(i)in the case of an applicant for enrolment under section 94A or 95 – the applicant does not possess a driver’s licence or an Australian passport; or
(ii)in any other case – the applicant does not possess a driver’s licence;
show to an elector in a prescribed kind of document that identifies the applicant; or
(c)otherwise – have the application countersigned by two electors who:
(i)can confirm the applicant’s name; and
(ii)have known the applicant for at least one month.”
The reference to “an applicant for enrolment under section 94A or 95” is a reference to an application by a person who has ceased to reside in Australia and is not enrolled and to an application by a person who is enrolled but who has ceased to reside in Australia. Like s 96, they come within Part VII of the Act.
Regulation 12 of the Regulations relates to a person making an application under s 96 and also to a person making a claim under ss 98 or 99A of the Act. Sections 98 and 99A are not relevant in this case but, in so far as it applies to this case, r 12 provides:
“(1) Subject to subregulations (2) and (3), a person making an application under section 96, … must provide details of:
(a)his or her driver’s licence number; and
(b)the Australian State or Territory in which the licence was issued.
(2)If an applicant or claimant does not hold a driver’s licence issued by an Australian State or Territory:
(a)the applicant or claimant must show to a person in a class of electors set out in Schedule 2 an original document, of a kind set out in Schedule 3, that identifies the applicant or claimant; and
(b)the person must complete the declaration on the enrolment form, stating that the person:
(i)is on the roll of electors; and
(ii)has sighted the original of one of the documents in Schedule 3.
(3)…
(4)If an applicant or claimant is unable to comply with subregulation (1), (2) or (3), the applicant or claimant must have his or her application or claim signed by 2 electors, who are able to:
(a)confirm the applicant’s or claimant’s name; and
(b)confirm that they have known the applicant or claimant for at least 1 month. ”
In the case of r 12(2) where an applicant does not hold a driver’s licence, an applicant may choose an original of one of 16 documents specified in Schedule 3 to show to a person in a class of electors set out in Schedule 2. The list of documents begins with an Australian birth certificate, or an extract of such a certificate, that is at least five years old, moves through documents such as current concession cards issued by the Department of Veterans’ Affairs and Centrelink and a Medicare card and then on to documents such as a current firearms licence and current security guard or crowd control licence. The list also includes a card issued by, or under the authority of a State or Territory government for the or a principal purpose of proving the person’s age.
Inspection and use of Rolls
A copy of the Roll for a Division and the Roll for each State and Territory are available for public inspection without fee during ordinary office hours at offices specified in s 90A(1) and (2). Section 90B sets out the persons and organisations to whom the AEC must give certain information relating to the Rolls, list of voters or voting information defined in s 90B(10). “Voting information” means, in summary, the names and addresses of electors who voted in an election and whether they voted at a polling place unless those electors were itinerant electors, eligible overseas electors and electors whose addresses have been excluded from the Roll under s 104.[31] Some of the persons or organisations to whom the information must be given include Senators and members of the House of Representatives.[32] The AEC may also provide those persons with “additional information”[33] and that includes the person’s postal address, sex, date of birth, salutation and other information relating to enrolment.[34]
[31] s 90B(10)
[32] s 90B(1)
[33] s 90B(2)
[34] s 90B(10)
The AEC may provide information of the sort identified in s 90B(4) to those persons identified in the same provision. The information is a copy of a Roll or an extract of the Roll. The persons include persons or organisations determined as appropriate by the AEC or conducting medical research or providing a health screening program. They also include a prescribed authority, a prescribed person or organisation that verifies or contributes to the verification of the identity of persons for the purposes of the Financial Transaction Reports Act 1988 (FTR Act) and a prescribed person or organisation that is a reporting entity and carries out applicable customer identification procedures under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (ALCTF Act).
A “reporting entity” has the same meaning as in the ALCTF Act i.e. a person who provides a designated service.[35] A “prescribed authority” means the Agency Head of an Agency, within the meaning of the Public Service Act 1999, specified in the Regulations or the chief executive officer of an authority of the Commonwealth specified in the Regulations.[36] Each of the Agencies and authorities of the Commonwealth specified in Schedule 1 of the Regulations is a “prescribed authority”.[37]
[35] ALCTF Act, s 5
[36] s 4(1)
[37] r 5A
If information is given to a person or organisation under s 90B, a person must not use that information for any purpose other than a permitted purpose in relation to the person or organisation to whom the AEC gave the information.[38] Section 91A sets out the permitted purposes in relation to each person, organisation or prescribed person or prescribed authority. Senators and members of the House of Representatives and political parties, for example, may use it for any purpose in connection with an election or referendum.[39] The permitted purposes in relation to a prescribed authority are monitoring the accuracy of information contained in a Roll and other purposes as prescribed.[40] Regulation 8 provides that those purposes mentioned in Schedule 1 of the Regulations are permitted purposes. Schedule 1 sets out number of Agencies and Commonwealth authorities and the purpose(s) for which they may use the information provided by the AEC.
[38] s 91A(1)
[39] ss 91A(1A) and (2)
[40] s 91A(2AA)
In relation to the Australian Crime Commission (ACC) for example, the purposes specified in Schedule 1 are:
“(a) Collecting, correlating, analysing and disseminating criminal information and intelligence
(b)Undertaking intelligence operations
(c)Investigating matters relating to relevant criminal activity
(d)Assembling or analysing evidence about offences and suspected offences
(e)Conducting criminal and operational investigations to support the authorised national security functions
(f)Security vetting of employees or potential employees”.
In relation to Centrelink, the purposes are:
“(a) Preventing the detecting fraud relating to identity or incorrect payments
(b)Locating persons who owe a debt to the Commonwealth”.
In relation to the Department of Immigration and Citizenship, the purposes are:
“(a) Facilitating travel to Australia, or entry to Australia, for an Australian citizen who may have lost his or her passport
(b)Enabling airport officers to identify travellers and confirm their status
(c)Assisting investigations and compliance staff in the detection of persons suspected of:
(i)being in Australia unlawfully; or
(ii)working without authority; or
(iii)being involved in people smuggling; or
(iv)committing offences against legislation administered by the Department”.
In relation to the Department of Veterans’ Affairs, the purposes are:
“(a) Undertaking reviews of, or research into, the health of former members of the Defence Force
(b)Protection of the public revenue in relation to reviews of entitlement to benefit”.
In relation to the Director of Public Prosecutions, the purposes are:
“Verifying the identity of, or locating, persons of interest in relation to property ownership matters conducted under the Proceeds of Crime Act 2002”.
In relation to the Insolvency and Trustee Service of Australia, the purposes are:
“(a) Locating and investigating bankrupts and their associates in relation to obligations under the Bankruptcy Act 1966
(b)Conducting criminal investigations in relation to the Bankruptcy Act 1966
(c)Investigating identity fraud”.
Review of decisions by the Tribunal
Section 121(1)(a) of the Act provides that and application may be made to the Tribunal for review of a decision made by an AEO refusing an application under s 96(1).
The other relevant section under which a decision was made was s 93A. A decision made by an AEO under s 120(6) when reviewing a decision of the Divisional Returning Officer to refuse to include a person’s name in the Roll is also reviewable by the Tribunal.[41]
[41] s 121(b)
For the purpose of reviewing a decision under s 93A, an AEO:
“… may exercise all of the powers and discretions that are conferred by this Act on the Divisional Returning Officer and shall make a decision in writing:
(a)affirming the decision under review; or
(b)setting aside the decision under review and making a decision in substitution for the decision so set aside.”[42]
[42] s 120(6)
This power reflects that found in s 43(1) of the AAT Act when it provides that:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”[43]
[43] Administrative Appeals Tribunal Act 1975, s 43(1)
Section 43(1) has been found to be a sufficient source of power to enable the Tribunal to accept a written undertaking from a person when reviewing the merits a decision of the Australian Securities and Investments Commission (ASIC) to impose a banning order on that person as a dealer’s representative. It had that power even though the person had no right to apply to the Tribunal for review of a decision of ASIC to refuse to accept an undertaking. His right was limited to applying for review of a decision of ASIC to make the banning order.[44]
[44] Australian Securities and Investments Commission v Donald (2003) 136 FCR 7; 203 ALR 566
CONSIDERATION
The starting point for my consideration is s 83(1). The Rolls must set out the surname, Christian or given names and place of living of each elector. Its focus on the name of the elector is continued throughout the Act and Regulations. Entitlement to vote hinges on a person’s being an elector whose name is on a Roll for a particular Division. An AEO or Divisional Returning Officer may refuse to include a person’s name on the Roll. The regulation making power conferred by s 98AA requires regulations relating to “identification for enrolment” must require an applicant for enrolment to “provide documentary evidence of his or her name …” in certain ways.
What is a “name”?
While the focus of the Act and Regulations is upon a person’s name, there is no definition of that word in the Act or the Regulations. The ordinary meanings of the word “name” include, in so far as they are relevant in this case:
“… 1 a word or words by which an individual person, place or thing is identified and referred to …”[45]
“…1 A word or combination of words constituting the individual designation by which a person, animal, place or thing is known, spoken of, etc …”[46]
[45] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[46] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
When a child is born in Victoria, a responsible person must report the birth to the Registrar of Births, Deaths and Marriages (Registrar).[47] A person registers the birth of a child lodging a birth registration statement with the Registrar.[48] The birth registration statement must state the name of the child.[49] That name becomes the child’s name unless the name stated on the birth registration statement is a prohibited name or the child’s parents are unable to agree upon a name. In that case, the Registrar assigns a name to the child.
[47] Births, Deaths and Marriages Registration Act 1996 (BDM Act), s 12
[48] BDM Act, s 12
[49] BDM Act, s 22(1)
Section 24 provides that “A person’s name may be changed by registration of the change under …” Part 4 of the Births, Deaths and Marriages Registration Act 1996 (BDM Act). An application for registration of a change of name may be made, in the case of an adult, by a person who is domiciled or ordinarily resident in Victoria or whose birth is registered in Victoria.[50] The Registrar may also change a person’s name if that person’s birth is registered in Victoria and the person’s name has been changed under another law or by order of a court.[51]
[50] BDM Act, s 25(1)
[51] BDM Act, s 28(2)
Before registering a change of name under that Part:
“… the Registrar may require the applicant to provide evidence to establish to the Registrar’s satisfaction –
(a)the identity and age of the person whose name is to be changed; and
(b)that the change of name is not sought for a fraudulent or other improper purpose; and
(c)if the person whose name is to be changed is a child aged 12 years or more, that –
(i)the child consents to the change of name; or
(ii)the child is unable to understand the meaning and implications of the change of name.”[52]
[52] BDM Act, s 28(1)
The Registrar may refuse to register a change of name if, as a result of the change, the name would be a prohibited name.[53] The Registrar registers a change of name by making an entry about the change of name in the Register.[54] If the birth of the person is registered under the BDM Act, the Registrar notes the change of name in the entry relating to that birth.[55] If the person’s birth is registered under a law of another State providing for registration of births, deaths and marriages that has been declared to be a corresponding law, the Registrar must notify the relevant registering authority of the change of name.[56] If the Registrar has been notified of a person’s details under s 63(1A) of the Sex Offenders Registration Act 2004 and then registers a change of that person’s name, the Registrar must notify the Commissioner of Police of the person’s former name and new name.[57]
[53] BDM Act, s 28(3)
[54] BDM Act, s 29(1)
[55] BDM Act, s 29(2)(a)
[56] BDM Act, ss 29(2)(b) and 4(1)
[57] BDM Act, s 29A
Part 4 of the BDM Act does not prevent a change of name by repute or usage. That is the effect of s 30. It is consistent with the position at common law that:
“Speaking generally, the law of this country allows any person to assume and use any name, provided its use is not calculated to deceive and to inflict pecuniary loss.”[58]
[58] Earl Cowley v Countess Cowley [1901] AC 450 per Lord Lindley
The Privy Council had earlier made the same point in a case in which the members of the Du Boulay family resident on the island of St Lucia claimed that the illegitimate son of a former slave of the Du Boulay family should not be permitted to use the surname “Du Boulay”. In delivery judgment, Sir Robert Phillimore said:
“… In this Country [England] we do not recognise the absolute right of a person to a particular name to the extent of entitling him to prevent the assumption of that name by a Stranger. The right to the exclusive use of a name in connection with a trade or business is familiar to our Law; and any person using that name, after a relative right of this description has been acquired by another, is considered to have been guilty of a fraud, or, at least, of an invasion of another’s right, and renders himself liable to an action, or he may be restrained from the use of the name by injunction. But the mere assumption of a name, which is the patronymic of a family, by a Stranger who had never before been called by that name, whatever cause of annoyance it may be to the family, is a grievance for which our Law affords no redress.”[59]
[59] Du Boulay v Du Boulay [1869] 2 AC 430 at 443
As noted by Sir William Scott in Wakefield v Wakefield,[60] the Master of the Rolls, Sir Joseph Jekyll, said in Barlow v Bateman,[61] that:
“… any one may take upon him what surname, and as many surnames, as he pleases: and for the term during which he uses such a surname, if he has a right to use it, it is what cannot be denominated an untrue name.”[62]
[60] (1807) 1 Hag Con 893
[61] (1730) 3 P Wms 65
[62] (1807) 1 Hag Con 893 at [399]-[400]
Sir William Scott questioned the basis upon which Sir Joseph Jekyll had come to his view of the law. In particular, he questioned Sir Joseph Jekyll’s understanding that surnames are not of very great antiquity. He referred to its being established that surnames were in common use among the “common people” during the reign of Edward II. Surnames discriminated that which had not previously been discriminated when “… Christian names are scattered about among the mass of people with such profusion that convey little or no distinction …”.[63] Sir William Scott also questioned Sir Joseph Jekyll’s conclusion for another reason that he expressed in this way:
“… I would observe likewise upon the confusion that must be produced, to a degree that would compel a legislative correction, if the practice at all followed this rule, that ever one might take what surnames he pleased and when he pleased; the whole world would be at hide and seek about identity in the concerns of almost every individual.”[64]
[63] (1807) 1 Hag Con 893 at [400]
[64] (1807) 1 Hag Con 893 at [401]
The case that Sir William Scott had to decide turned on whether the banns for a marriage, as required by 26 G. 2, c. 33, had been published in the true name of the woman to the purported marriage. If they had not been published in her true name, the marriage was null. Even taking the position as stated by Sir Joseph Jekyll to be generally true, he said that:
“… I think that the particular case of the marriage act might be admitted to form an exception. The marriage, except in case of a licence, is to be performed by proclamation of banns, which is to designate the individual in order to awaken the vigilance of parents and guardians, and to give them an opportunity of protecting their rights. It therefore requires that the true name should be given to them, evidently considering that a name, assumed for the occasion, is a name that will not answer the purposes of the provisions. Accordingly this Court has conceived itself to be carrying the intention of the law into effect when it has annulled marriages where a false name has been inserted in the banns, though no fraud was intended, upon the ground that such proclamation was no proclamation referring to that marriage, but to another transaction; the marriage therefore was without proclamation of banns, and consequently illegal. There was a fraud, a want of fidelity and truth, in the application of the banns to the marriage though there might be no fraud in the original intention. It is therefore, I think, clear that if there is a true name, that true name must be used; it may be a name less notorious to the world than some name which the party has thought fit to assume, but is not less the true name on that account; it is the name which, it is presumed, her relations, her parents, her guardians are best acquainted with, and therefore the name which ought to be applied upon such occasion, provided she is possessed of such a name.”[65]
[65] (1807) 1 Hag Con 893 at [401]-[402]
Sir William Scott went on to say that the legislature had “held out” that every person has a true name and it was the duty of the Court to decide what it was. The woman in Wakefield v Wakefield had used a number of names. Apart from “Mackay”, which is the name that her mother adopted on her marriage to John Mackay after the birth of her daughter, most of her various names had been adopted while in the company of Mr Wakefield he sought to have their marriage declared a nullity. Sir William Scott concluded:
“ Then taking all this evidence together, that it was the name of her mother; that it was the name impressed upon her at her birth; that she has used that name in the most solemn acts of her life, civil and religious, and at various periods of her life, which has not been a long one; I say, taking that evidence and comparing it with the evidence on the other side, which embraces only a very short period of her eventful life; the Court would not be warranted to say upon this evidence that Jackson is so clearly demonstrated to be the untrue name of this person, if she did possess a true name, as to destroy the validity of the marriage.”[66]
[66] (1807) 1 Hag Con 893 at [407]-[408]
In the later case of Dancer v Dancer,[67] Ormerod J considered a very similar issue under what had by then become s 7 of the Marriage Act 1823. Section 7 required that the true Christian names and surname should be delivered to the vicar when the banns were published. The woman had been born in wedlock and her parents’ surname was “Knight” but, until the age of 16 years, she had understood her surname to be “Roberts” and had used that surname. Ormerod J found that she had, on advice of the vicar and wishing to avoid any form of concealment, allowed her name to go forward as Roberts in the banns. She had no intention to deceive or to conceal anything. The question was whether her birth surname was her true surname or whether it was that which became hers by a usage that was so common and complete that it would not be reasonable to say that her true name was anything other than Roberts. Ormerod J was satisfied that the name of Knight had been overridden by the use of the name Roberts.
[67] [1949] P 147
These two cases concerned a person’s surname. A person may also have a Christian name or a given name. There is authority regarding a Christian name. Although the term is commonly used to designate “… loosely anyone’s first or given name; a forename …”,[68] for some it still carries the meaning of “… the personal name given to a Christian at baptism.”[69] When used in that latter sense, there is authority to the effect that it can only be changed in one of three ways. First, it may be changed by an Act of Parliament. Second, it may be changed if a person takes a different name on being confirmed. Third, but more questionably, it may be changed by the addition of a name if a child is adopted. Each of the third ways was referred to by Vaisey J in In re Parrott v Cox.[70]
[68] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[69] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[70] [1946] 1 Ch 183 at 186-187
This view of the common law is consistent with that expressed by Lord Ellenborough CJ and Le Blanc J in The King v The Inhabitants of Billinghurst.[71]A person whose baptismal name had been Abraham and whose surname had been Langley married a woman. When the banns were published, he was referred to as George Smith. For three years before the publication of the banns, he had lived in the area and had been known from the first to the last as George Smith. The issue was whether the marriage was valid. In resolving the matter, Lord Ellenborough CJ and Le Blanc J did not find themselves confined by the common law. Instead, they looked to the object of the statute permitting marriage by the publication of banns:
“… The object of the statute in the publication of the banns was to secure notoriety, to apprize all persons of the intention of the parties to contract marriage; and how can that object be better attained, than by a publication in the name by which the party is known? If the publication here had been in the name of Abraham Langley, it would not of itself have drawn any attention to the party, because he was unknown by that name, and its being coupled with the name of the woman who probably was known, would perhaps have led those who knew her, and knew that she was about to be married to a person of another name, to suppose either that these were not the same parties, or that there was some mistake. Therefore the publication in the real name, instead of being a notice to all persons, would have operated as a deception; and it is strictly correct to say, that the original name in this case would not have been the true name within the meaning of the statute. On these grounds I think that the Act only meant to require that the parties should be published by their known and acknowledged names, and to hold a different construction would make a marriage by banns a snare, and in many instances a ruin upon innocent parties. The Court therefore cannot lend itself to a construction which would be pregnant with such consequences.”[72]
[71] (1814) 3 M & S 250
[72] (1814) 3 M & S 250 at 257-258
What principles can be drawn from these authorities and State legislation such as that appearing in the Victorian BDM Act? The first is that a person may choose to be known by any surname. The person’s choice is not limited to a surname having a connection with, for example, his or her parents, place of birth or place of residence. Where a person has a Christian name in the sense of a name given to a Christian at baptism, change may be more problematic. Australia, however, is not nineteenth century England in which these cases were decided. It may well be both a more secular and culturally diverse society than that in England at the time. It is a society in which persons will not necessarily have a Christian name in the original sense of the term. They will have one in the looser sense of the term and so in the sense of a given name. As a general rule, where a person has a given name, that name will have been chosen by the person’s parent or parents. The person may change it to another.
Choosing to change a name is one thing and establishing that the change has been made is another. One way of establishing it is to point to a change to the records made and held by the Registrar of Births, Deaths and Marriages in Victoria or by a person holding an equivalent position under the law of another State or Territory. Such a change is effected after a person has made an application for registration of a change of name under the relevant State or Territory law. Another way to change a name is simply to use the chosen name. In that way, others get to know the person by that name. The person establishes a pattern of answering to the chosen name using it in the course of carrying out the myriad of tasks that attend living and working in the community. In other words, the chosen name may be established by usage and repute.
The fact that a person may choose a name by which to be known does not mean that the person may always insist upon others using that name. Parliament, for example, may decide that a person is to be known by a name other than his or her chosen name. Whether it has, depends on the interpretation of the statutory provision concerned when considered in the context and purpose of the statute in which it is found.
The place of accuracy in maintaining the Rolls
The Act sets out a scheme for the enrolment of persons qualified to vote, the maintenance of the Rolls identifying those persons and the use of those Rolls. It hinges on a person’s being correctly identified. That is apparent from the provisions relating to the evidence of identity that a person must produce on claiming to be entitled to be enrolled. It is also apparent from the powers given to Divisional Returning Officers to correct the Rolls so that those who are not entitled to be enrolled are not enrolled and that the details of those who are enrolled are correct.
The accuracy of the Rolls is essential to ensure that those who are entitled to vote are able to do so for that entitlement comes with their names being placed on the relevant Rolls. Accuracy is essential to ensure that only those who are entitled to vote are able to do so. There are also a number of purposes for which the Rolls may be used but which are quite unconnected with elections. It is apparent from the examples that I have given above[73] that those purposes cover a range of activities as diverse as medical research and prescribed persons or organisations that carry out applicable customer identification procedures under the FTR Act and under the ALCTF Act. When those purposes are examined, it becomes apparent that accuracy in the identification of persons is also essential.
[73] See [31] above
Taking the FTR Act as an example, it provides for, among other things, the reporting of certain transactions and transfers. Its object is to facilitate the administration of taxation and other laws.[74] In very general terms, where a cash dealer is a party to a significant cash transaction, the dealer must prepare a report of the transaction and communicate the information in that report to the Director of the Australian Transaction Reports and Analysis Centre (AUSTRAC) within the reporting period.[75] The term “cash dealer” includes a wide body of persons and bodies ranging from financial institutions to bookmakers and extends to bullion sellers and those carrying on business in the collection of currency.[76]
[74] FTR Act, s 4
[75] FTR Act, s 7 and see also s 3(1)
[76] FTR Act, s 3(1)
When a person opens an account with a cash dealer or becomes a signatory to an account, that cash dealer must obtain “account information” about the account and “signatory information” about each signatory.[77] In so far as signatory information relating to an individual person is concerned, it includes the person’s name and an identification record in accordance with s 20A of the FTR Act.[78] That section provides that a person has such an identification record only in two circumstances. In the first, the cash dealer must have an identification reference for the signatory. The second arises if the cash dealer is an identifying cash dealer and has carried out and has a record of the prescribed verification procedure or of a verification procedure approved by the Director to identify the signatory.
[77] FTR Act, s 18
[78] FTR Act, s 3(1)
An identification reference for a signatory to an account is a written reference by an acceptable referee stating matters such as the length of time for which the referee has known the signatory and the period for which the signatory has been commonly known by the name put forward for the account. The referee must also state that he or she has examined:
“(i) a specified primary document for the signatory in that name;
(ii)a specified secondary identification document for the signatory in that name and a specified primary identification document for the signatory in a former name of the person; or
(iii)only a specified secondary identification document for the signatory in that name.”[79]
A “primary identification document” in relation to a person in a particular name means a certified copy, or an extract of, the person’s birth certificate, a certified copy of the person’s citizenship certificate, an international travel document for the person or any other prescribed document showing the person’s name.[80] A secondary identification document means a document other than a primary document establishing the identity of the person.[81]
[79] FTR Act, s 21(1)(c)
[80] FTR Act, s 3(1)
[81] FTR Act, s 3(1)
Regulation 3 of the Financial Transactions Reports Regulations (FTR Regulations) sets out the verification procedure and r 4 provides for the checks that may be made by an identifying cash dealer in relation to a signatory as part of that verification procedure. Taking the first check set out in r 4(1)(a) as an example, the check is to verify the person’s name and address from various persons and bodies such as the signatory’s employer, a rating authority and another cash dealer on the basis of records held by those persons or bodies. Each verification is worth 35 points.[82] Other checks require other verification from persons or records and are assigned various points. Among them is the electoral roll compiled by the AEC as is the verification of the signatory’s name and address by a nominee of the signatory who is an acceptable referee or who would be an acceptable referee had he or she known the signatory for at least 12 months, the owner or landlord of premises rented by the signatory as his or her residence or place of business.[83] Regulation 3(2) provides for the way in which the points are counted and accumulated while r 3(3) restricts the number of times the points from particular types of sources may be counted. A signatory is taken to be identified if the signatory rates at least 100 points.[84]
[82] FTR Regulations, r 4(1)(a)
[83] FTR Regulations, r 4(1)(b)(i), (ii) and (iii)
[84] FTR Regulations, r 3(2)
It follows from this summary that the Rolls are only one part of the verification procedure under the FTR Act and the FTR Regulations. For all that, though, the summary of the FTR legislation illustrates the importance that Parliament now attaches not only to the identification of persons simpliciter but to the identification of those persons from a variety of sources. Sources such as personal referees that would once have been sufficient to establish identity by repute are no longer sufficient on their own. The summary illustrates that this is so in the limited area of financial transactions but the importance of proper identification is not limited to that area. Reference to ss 90A, 90B and 91A of the Act and r 8 and Schedule 1 of the Regulations[85] indicates its importance for a much wider group of persons and organisations and the place that the Rolls have in assisting them in carrying out various responsibilities connected with law enforcement and debt recovery.
[85] See [27]-[31] above
What does “name” mean in the Act?
The word “name” is not defined in the Act or in the Regulations. Regulations relating to identification have been made only in relation to applications for enrolment under ss 94A, 95, 96, 98 and 99A but not in relation to claims for enrolment or transfer of enrolment made under s 101. Having regard to the scheme of the Act, it seems to me that the word “name” does not necessarily mean the name by which a person chooses to call him or herself or even that by which he or she is generally known.
The entitlement to, and the obligation to be, on the Roll is that of a “person” who is qualified for enrolment. The focus is upon the person and not upon the person’s name. It is only if the Divisional Returning Officer is satisfied that the “claimant”, and so the person, for enrolment is entitled, in respect of residence at an address, to be enrolled for a Subdivision that the name of the claimant is entered on the Roll. The focus upon the person and the place of residence implicitly directs attention to the person’s identity. In the case of those who do not reside in any Subdivision, s 96 expressly directs attention to the person’s identity for the application lodged by such a person must be supported by evidence of identity.
The evidence that is required is set out in r 12. That regulation is made under the authority conferred by s 98AA. Although it is not my role to determine the validity of r 12, I note that it seems consistently made with the regulation making power. At the hearing, I wondered whether ss 98AA(1)(a), (b) and (c) were alternatives that had to be expressed in those terms in the Regulations. On further reflection, I think that s 98AA(1) is clear on its face. Speaking only in terms of a driver’s licence, the practical result is that, if an applicant for enrolment under s 96 has a driver’s licence, the person is required to state its number. If the person does not have a driver’s licence, the applicant must show to an elector in a prescribed class of electors a prescribed kind of document identifying the applicant. If the applicant cannot produce an original of any of the 16 documents listed in Schedule 3, only then may the applicant rely on two electors who are able to confirm his or her name and that they have known him or her for at least one month.
Regulation 12 is clearly directed to ascertaining the person’s identity. Each of the documents listed in Schedule 3 is a document that has to be issued by an agency of, or under the authority of, a Commonwealth, State or Territory Government. Each would not have been issued without some degree of satisfaction as to the identity of the person. If the focus were simply upon the name of an applicant and not upon an applicant’s identity, there would be no need to specify an Australian birth certificate that is at least five years old. As is apparent from my reference to Victoria’s BDM Act, a more recent birth certificate could well reflect a change of name. A current credit card, which is included on the list, may also reflect a change of name but will only have been issued to the applicant in a particular name after that applicant has been able to produce sufficient proof of identity to meet the 100 point verification test has been administered as required by the FTR Act and the FTR Regulations. A current identity card issued by an employer and showing an applicant’s photograph and signature may not be thought to provide such strong evidence of identity but it is directed to identity all the same. Section 93A(2)(b) also illustrates that a provision such as s 96 is focused on the name established by the evidence of the person’s identity rather than the name by which the person is usually known. If s 96 were not focused in that way, there would be no need for s 93A(2)(b) to provide that an AEO could refuse to include a person’s name on the basis that it is not the name by which the person is usually known.
In view of these particular provisions as well as the scheme of the Act and the Regulations, it seems to me that the word “name” used in the Act is intended to refer to the name by which the person establishes identity. Identity of the person is often established by a link between the person claiming enrolment and that person’s place of residence. If he or she has no place of residence, it is established by reference to a driver’s licence, by reference to any of the prescribed documents if the person does not have a driver’s licence, or, if the person has neither a driver’s licence nor an original of a prescribed document, the word of two electors. The name in which a person’s identity is established is the name entered on the Roll. That name may match the name noted on the application as the person’s current name but it may not.
In this case, the AEO chose to refuse Mr Dent’s application for enrolment. Instead, he chose to refuse Mr Dent’s “… application for enrolment under section 96 of the Act in accordance with section 93A of the Act.”[86] It seems to me that the AEO has mixed what are two separate decisions. That they are separate decisions is confirmed by s 121 which gives the Tribunal power to review decisions under each of s 93A and 96. Section 96 requires a consideration of the application and, if the requirements of s 96(2) are mandatory as they would seem to be, whether the application meets those requirements. If it does not, the application would be refused.
[86] T documents, T2 at 9
Where, as in this case, the application meets the requirements of s 96(2), it seems to me that the AEO must grant the application and decide upon the name to be entered on the Roll as I have decided. Only when the AEO has decided on the person’s name for the purposes of, in this case, s 96, will it become relevant to look at the name in light of s 93A. That is when the AEO will consider whether that name is fictitious, frivolous, offensive or obscene, whether it is a name by which the person is not usually known or is not written in the alphabet used for the English language. That is when the AEO will consider whether to refuse to include the person’s name in the Roll because to do so would be contrary to the public interest.
This conclusion does not have the practical effect of disenfranchising those who are homeless or who do not have, for whatever reason, any of the prescribed documents in original form or otherwise. They can be enrolled even though they have no place of residence. They may rely on identification by two electors and do so without reference to any documentation.
Mr Dent’s application for registration under s 96
On the basis of his statements, I find that, for Mr Dent, the name Arthur Dent identifies who he is and it is the name which he has asked his family and friends and those with whom he engages to use when addressing him. It is not, however, the name on his driver’s licence. The name on that document is Albert Langer. On the view that I have taken of s 96, the AEO should grant the application and cause the name of Albert Langer to be added to the Roll.
I have considered whether the Tribunal’s power to review a decision under s 96(1) permits me to consider the name in which a person should be enrolled. I have had regard to the principles expressed in Australian Securities and Investments Commission v Donald as well as the power given to the Tribunal by s 43 of the AAT Act. That power is to exercise, for the purposes of reviewing a decision, all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. It seems to me that deciding upon the name that will be entered on the Roll is an integral part of the wider decision under s 96 i.e. whether to accept or refuse an application. It is an integral part because accepting or refusing an application for enrolment requires a decision to be made as to who is the person who is the applicant for enrolment and whether that person is identified. The application form simply asks for the person’s “current name” in terms of a family name and given name(s). If the applicant has changed his or her name since his or her last enrolment, the application form asks for his or her previous family name and given name(s). It is left to the AEO to decide the person’s name within the meaning of the Act.
If I am incorrect in my view that s 96 enables that decision to be made, I rely on s 93A. It is implicit in the power to refuse to include inappropriate names in the Roll that a Divisional Returning Officer or AEO has the power to determine the person’s name.
Should the name of Albert Langer not be entered on the Roll?
In view of my finding in the previous paragraph, a question immediately arises in relation to s 93A(2)(b). Is Albert Langer not the name by which Mr Dent is usually known? That in turn raises the question of what is meant by “usually”. It means “ordinarily or normally”[87] but among what group. As Albert Langer, Mr Dent has been a well known figure, at least in Victoria, as a social activist on a range of issues since the 1960s. He has conducted court proceedings in that name[88] and made application to the Tribunal in it.[89] He continues to be well known by that name. By way of contrast, his adoption of the name Arthur Dent is a relatively recent event. He is well known by it in a closed group of friends and associates even though some have taken to it with less gusto than he has and some forget from time to time and revert to Albert.
[87] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[88] See e.g. Langer v The Commonwealth of Australia (1996) 186 CLR 302
[89] He has had a previous applications in this Tribunal: Re Langer and Telstra Corporation Limited [2002] AATA 341
In view of the purposes of the Roll to which I have referred, it seems to me that Mr Dent’s notoriety require me to have regard to usage among a group that extends beyond his immediate family and acquaintances. There is no evidence that those among the wider general community who would know of him would now know him as Arthur Dent. The Roll requires entry of a name that identifies an elector. That is a requirement that has its roots in purposes beyond those affecting an elector and his immediate family and acquaintances. In light of that, I do not consider that this is a case in which I am satisfied that Albert Langer is not the name by which Mr Dent is usually known within the meaning of s 93A(1)(b).
Would it be contrary to the public interest to include Mr Dent’s name as Arthur Dent? The public interest referred to in s 93A(2) is not defined but it is a notion that has been considered in a number of authorities. One of the more recent is McKinnon v Secretary, Department of Treasury[90] which was concerned, in part, with whether there reasonable grounds for a claim that disclosure of certain documents would be contrary to the public interest within the meaning of s 36(1)(b) of the Freedom of Information Act 1982 (FOI Act). Those in the minority on the final result, Gleeson CJ and Kirby J, examined the object of the FOI Act, the structure of s 36 and its place in the legislation. They continued:
“ A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)).”[91]
[90] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
[91] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 428; 189; 518 [5]
A similar approach to the notion of public interest would seem to be appropriate in the context of s 93A(3). The object of the Act is to ensure the accuracy of the Roll and, no doubt in light of its accuracy, to permit it to be used for purposes connected with law enforcement and for purposes connected with identification. In light of that, the public interest is in maintaining that accuracy. It is in maintaining a record of names of electors that have a basis in available identifying documents and that do not have a basis on repute and usage unless none of the prescribed identifying documents is available. This is a case in which one of the prescribed identifying documents is available and that identifies Mr Dent as Albert Langer. Therefore, it is not contrary to the public interest to record the name Albert Langer in the Roll rather than Mr Dent’s chosen name of Arthur Dent.
Alternative reasons under s 93A
Should I be incorrect in my decision that the AEO should enter the name of Albert Langer on the Roll, rather than Arthur Dent, and then consider that name in light of s 93A, I have considered the name of Arthur Dent in light of s 93A of the Act.
I accept that it is a name bestowed upon a fictitious character in Douglas Adam’s Hitchhiker’s Guide to the Galaxy but I do not accept that this means that it is a fictitious name within the meaning of s 93A(2)(a). It is not an “imagined, invented, not real”[92] and so fictitious. Were it not for Douglas Adams, it would be thought quite unexceptional and it is not rendered anything by its literary connections. In particular, it is not rendered frivolous, offensive or obscene.
[92] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
I would have more difficulty with whether the name Arthur Dent is the name by which he is usually known. Again I would have to have regard to the wider community in view of his previous activities as well as to the name that appears on any documents of the sort set out in Schedule 3 to the Regulations. I accept that there is a proceeding in the Federal Court in the name of Arthur Dent as there is in VCAT. There is nothing to suggest that a person must bring a proceeding in either the Court or in VCAT only after offering proof of identity of the sort required by the Act. In the absence of evidence from the wider community and in light of the relative shortness of time that he has been using the name of Arthur Dent, would be satisfied that Arthur Dent is not the name by which he is usually known. That will not always be the case but I am satisfied that it is so at this time.
My understanding of the public interest would also lead me to conclude that including the name of Arthur Dent in the Roll would not be in the public interest. Maintaining the accuracy of the Roll is important for the reasons I have given. In light of that, the public interest is in maintaining that accuracy and it does that by maintaining a record of names of electors that have a basis in available identifying documents. It would not be in the public interest to include among those names the name of Arthur Dent when that name has not been established on the basis of the identifying evidence required by s 96.
Outcomes
I realise that this decision means that Mr Dent is not to be enrolled in the name of his choice or the name by which he is now generally known among his family and those with whom he associates from time to time. If he wishes to be enrolled in the name of Arthur Dent on the basis of an application under s 96, he can be but, in order to do so, he will first have to take steps to produce evidence of identity that is in accordance with r 12 of the Regulations and that establishes his name as Arthur Dent. I am not satisfied that he has done so.
Section 104
In a letter sent to the Tribunal by facsimile after the hearing, Mr Dent indicated that he wanted to have his application considered under s 104 if he were not successful under s 96. I do not consider that I can take that course.
Mr Dent made his application for enrolment under s 96 as a person who does not reside in any Subdivision. I accept his statements that he is homeless or, at least, that he has no fixed address. His evidence of homelessness is entirely at odds with a request under s 104. Such a request accompanies a claim for enrolment where “… having his or her address shown on the Roll for a Subdivision would place the personal safety of the person or of members of the person’s family at risk …”.[93] Mr Dent has, on his own evidence, no address and is not making a claim for enrolment; rather he is making an application for enrolment. He is not entitled to make a request and so I do not need to consider the matter under s 104.
[93] s 104(1)
On the basis of his letter of 29 October 2007 to the AEC, I understand that Mr Dent felt that the effect of s 166(6) was that, if he did not make a request under s 104 and if his request was not granted, he would have to set out his place of residence on the form nominating him as a candidate for election as a Senator. Section 166 relates to the mode of nomination and requires that the nomination set out, among other details, the name, place of residence and occupation of the candidate.[94] Section 166(6) provides that:
“Nothing in this Act is to be taken as requiring a person:
(a)who is a candidate or the nomination of a candidate; and
(b)whose address is not shown on the Roll because of section 104;
to set out his or her address on a nomination paper.”
[94] s 166(1)
Section 166(6) does not refer to a person who is enrolled as an itinerant elector under s 96 but one wonders why it would. The Roll is annotated to indicate that a person enrolled as an itinerant elector is enrolled as such. There can be no place of residence. That is the effect of s 96(2C). Whether a person is required to have a place of residence before nominating as a candidate is not something that I must decide. I note, however, that the various provisions of the Act cannot be relied upon at the whim of each individual. A person cannot, for example, decide to be an itinerant person for the purposes of an application under s 96 but a person who does have a place of residence for the purposes of nominating as a candidate for election in accordance with s 166. I have decided the matter on the basis that Mr Dent has applied under s 96 and is entitled to be enrolled as an itinerant elector.
For the reasons I have given, I:
1.set aside the decision of an Australian Electoral Officer dated 31 October 2007; and
2.substitute a decision that:
(1)the application for enrolment is granted; and
(2)the name of Albert Langer will be entered on the Roll for the Subdivision ascertained by an Australian Electoral Officer in accordance with s 96(2A) of the Commonwealth Electoral Act 1918.
I certify that the eighty-six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Haydon Associate
Date of Hearing 19 November 2007
Date of Decision 23 November 2007
For the Applicant self represented
Counsel for the Respondent Dr S. DonaghueSolicitor for the Respondent Mr P. Barker,
Australian Government Solicitor
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