Dent v Australian Electoral Commission
[2007] FCA 1698
•1 November 2007
FEDERAL COURT OF AUSTRALIA
Dent v Australian Electoral Commission [2007] FCA 1698
ARTHUR DENT v AUSTRALIAN ELECTORAL COMMISSION and DARYL WIGHT
VID 982 OF 2007
RYAN J
1 NOVEMBER 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 982 OF 2007
BETWEEN:
ARTHUR DENT
ApplicantAND:
AUSTRALIAN ELECTORAL COMMISSION
First RespondentDARYL WIGHT
Second RespondentJUDGE:
RYAN J
DATE OF ORDER:
1 NOVEMBER 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for interlocutory relief be refused.
2.The matter be adjourned to a date to be fixed for a directions hearing.
3.Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 982 OF 2007
BETWEEN:
ARTHUR DENT
ApplicantAND:
AUSTRALIAN ELECTORAL COMMISSION
First RespondentDARYL WIGHT
Second Respondent
JUDGE:
RYAN J
DATE:
1 NOVEMBER 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is before the Court an application claiming the following relief;
‘1.That the Australian Electoral Commission enrol the applicant forthwith as an elector pursuant to the Electoral Enrolment Form dated 16 October 2007.
2.That the Australian Electoral Commission enrol the applicant forthwith pursuant to the Request by an Elector for Address not to be shown on the Electoral Roll dated 16 October 2007 and as a general postal voter.
3.Damages.
4.Costs.’
The applicant has also claimed by way of interlocutory relief;
‘1.That the Respondents enrol the applicant forthwith as an elector pursuant to the Electoral Enrolment Form dated 16 October 2007.
2.That the Respondents enrol forthwith the applicant as specified in his form dated 16 October 2007 for address not to be shown on electoral roll and as a general postal voter.’
On 19 August 2002, the applicant was advised under the name “Albert Langer” by a Divisional Returning Officer of the first respondent, (“the Commission”), that his name had been removed from the electoral roll because “it appeared that you were no longer living at your enrolled address and that you may not have lived in the electoral subdivision for at least the last month.” The same letter also recited that the applicant had not responded to an earlier letter requiring him, in effect, to show cause why his name should not be removed from the electoral roll.
On 16 October 2007, the applicant under the name “Arthur Dent” made to the Commission a written “Request by an Elector for address not to be shown on the Electoral Roll.” That request nominated the applicant’s address as “c/-“ a particular address at a Melbourne inner suburb. It acknowledged that the applicant had previously been enrolled under the name “Albert Langer.” In support of that request the applicant declared;
‘1.I was previously known as Albert Langer and am now known as Arthur Dent.
2.The personal safety of myself and family members is at risk from harassment and violence from Nazis, Zionists, islamofacists and other anti-democratic bullies who have repeatedly made threats and actually forced entry into the homes of family members looking for me.’
Also on 16 October 2006, and apparently under cover of the same communication to the Commission, the applicant submitted an “Electoral Enrolment for persons with no fixed address in Victoria.” That request disclosed the applicant’s “current name” as Arthur Dent and gave as the residential address for which he was claiming enrolment “c/-” the same particular address nominated in the request for address not to be shown on the electoral roll. By way of a statement of reasons in support of his request for enrolment as a person with no fixed address, the applicant recited;
‘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.’
On the standard form for the second request, in response to a request for information about the holding of an Australian driver’s licence, the applicant supplied the number of a licence which had been issued in Victoria “under previous name” which had been supplied in answer to an enquiry on the first page of the same form, “Have you changed your name since you last enrolled?” to which the applicant replied, “Yes,” and in the space designated “previous given names” he inscribed the names “Langer, Albert.”
By letter dated 18 October 2007, another Returning Officer of the Commission, Ms Johnson, advised the applicant as follows;
‘ADDITIONAL INFORMATION REQUIRED FOR REGISTRATION AS A SILENT ELECTOR
Recently you applied for registration as a silent elector but unfortunately some necessary detail is missing. So that I can process your application, would you please provide further details as noted below:
·Electoral enrolment form to change your name and place yourself on the electoral roll with your address suppressed.
·The Federal electoral rolls closed on 17th October 2007 therefore you will not be eligible to vote on 24th November 2007. Once I have received your electoral enrolment form your name will be placed on the electoral roll for future elections.
If I do not receive a reply from you within 28 days, I will be making my decision on whether to accept or reject your application on the basis of the information that you have provided and I will contact you further.’
On the next day, 19 October 2007, the second respondent Mr White, an Australian Electoral Officer and State Manager for Victoria of the Commission, wrote to the applicant in these terms:
‘Thank you for the claim for enrolment which was received on 17 October 2007. As I understand your claim form, you are seeking to be included on the electoral roll as an itinerant elector in accordance with the requirements of section 96 of the Commonwealth Electoral Act 1918 (the Act).
There are a number of provisions in the Act which I am required to consider before I am able to include your name on the electoral roll. The most relevant provision which applies to your present circumstances is section 98A.
“Refusal to include in the Roll inappropriate names
(1)This section applies to the inclusion in a Roll, or transfer to a Roll, of a person’s name under a provision of this Part.
(2)A Divisional Returning Officer or Australian Electoral Officer may refuse to include in a Roll, or transfer to a Roll, a person’s name 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)is not written in the alphabet used for the English language.
(3)A Divisional Returning Officer or Australian Electoral Officer may refuse to include in a Roll, or transfer to a Roll, a person’s name if including the name in the Roll, or transferring it to the Roll, would be contrary to the public interest.
(4)A Divisional Returning Officer or Australian Electoral Officer who decides under this section to refuse to include a person’s name in a Roll must notify the person in writing of that decision.”
I am required to consider whether the matters covered in subsection 98A(2) apply to your claim for enrolment; in particular, whether the name under which you are seeking to be included in the electoral roll is “fictitious”, “frivolous” or “is not the name by which the person is usually known”. I am also required to consider whether including your enrolment claim would be “contrary to the public interest”. Moreover, I note that the name on your driver’s licence does not correspond with the name under which you are seeking to be enrolled. In these circumstances, I consider that there is prima facie evidence that I should refuse to include you on the electoral roll under the name you claim for enrolment.
Given that it is a serious matter for a person to be prevented from being able to vote and before I make a formal decision, you have the opportunity to provide evidence that the name under which you are seeking to be included in the electoral roll is not “fictitious”, “frivolous”, “is the name by which you are usually known” or is “contrary to the public interest”. The type of evidence which you would need to provide would include 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.
You will appreciate that it is important that this matter is resolved promptly to enable the electoral rolls for the forthcoming election to be finalised. Accordingly, you will need to provide me with the evidence within 7 days of the date of this letter. If you are unable to provide evidence within that timeframe, I may need to consider your claim for enrolment on the evidence currently available to me. This consideration may result in the rejection on your claim for enrolment under subsections 98A(2) or 98A(3) of the Act.
If you have any queries about the contents of this letter, the contact officer is Kaye Bartlett, phone no. …….’
By facsimile letter dated 29 October 2007 the applicant responded to the correspondence from the Commission asserting, amongst other things:
‘2. As I understand the words “you will not be eligible to vote on 24th November 2007” you have taken a decision to refuse my application for enrolment as an itinerant elector and application for my address not to be shown in the roll plus application to be enrolled as a general postal voter despite having received both forms in good order, enclosed in the same Express Mail envelope on time prior to 8pm on Wednesday 17 October. You further threaten and intend not to permit me to enrol at all.
3. You now seek to embroil me in correspondence about the matter, knowing that the deadline for nominations is noon on this Thursday 1 November 2007 and knowing that the effect of my not being enrolled as a silent elector would be to require publication of my current residential and postal address in the nomination forms despite s.166(6) under the circumstances described in the statutory declaration accompanying my 2 application forms enclosed together.
4. I am a candidate for election as a Senator for Victoria and as a Member of the House of Representatives for the Division of Melbourne so I do not have time to respond to your bullshit while deciding which nomination I will withhold consent from.
5. Provided that I received confirmation by courier at my address for service below, that I have been enrolled by 9.30am on Tuesday 30 October I “may” not initiate proceedings under s.383 to enforce my rights as a candidate later that morning.’
That letter elicited this response, dated 30 October 2007 from the second respondent:
‘I refer to the facsimile received in this office on 29 October 2007 about your enrolment and possible nomination.
When Ms Johnson, the Divisional Returning Officer for Melbourne, wrote to you about your application to be a silent elector on 18 October 2007, she was not aware that you had already lodged an enrolment form. Accordingly, a decision has not yet been made on your application for enrolment and, consequently your entitlement to vote at the forthcoming federal elections.
In my letter to you of 19 October 2007, I asked you to provide evidence that the name under which you are seeking to be enrolled is not “fictitious”, “frivolous”, “is the name by which you are usually known” or is not “contrary to the public interest.” I advised you that the type of evidence you would need to provide would include 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 asked you to provide the evidence within seven days. Your facsimile of 29 October 2007 does not address my requests.
In your facsimile of 19 October 2007 you advised that you are considering nominating as a candidate for the forthcoming federal elections. Under subsection 166(2) of the Commonwealth Electoral Act 1918, where a person is not enrolled, the nomination must specify the names under which the person is entitled to be enrolled. Accordingly, your ability to nominate for the forthcoming federal elections may depend on my decision on your application for enrolment.’
The applicant also relied on a statutory declaration made on 30 October 2007 by Peter Vincent Green which attested to attempts made by Mr Green to lodge part of the deposit required in support of the nomination of a candidate for election respectively to the House of Representatives and to the Senate at the forthcoming general election. Mr Green has declared that, in response to his inquiries, officers of the Commission indicated, in effect, that a deposit could only be accepted if accompanied by a completed nomination form.
At the hearing yesterday, on 31 October 2007, the applicant indicated that he required the Commission to make a decision whether to accept or reject his application to be enrolled as an elector. He also said unequivocally that he did not wish to place before the Commission any further information on which it might base its decision. In the light of those intimations by the applicant, Dr Donaghue of Counsel, who then appeared for the respondents, said that he was instructed that the Commission could make such a decision by at the latest 10.00 am this morning on 1 November 2007. Accordingly, I adjourned the further hearing of the application until 10.15 this morning.
On the resumption of the hearing, an affidavit was filed on behalf of the respondents which attested to the service by facsimile on the applicant of a letter by the second respondent in these terms;
‘I refer again to the claim for enrolment which was received on 17 October 2007. As I understand the claim form that you completed and submitted, you are seeking to be included on the electoral roll as an itinerant elector in accordance with the requirements of section 96 of the Commonwealth Electoral Act 1918 (the Act).
I also refer to your request, received on 17 October 2007, under section 104 of the Act for silent elector status.
In my letters of 19 October 2007 and 30 October 2007, I advised you that I am required to consider whether the matters covered in subsection 93A(2) apply to your claim for enrolment, in particular whether the name under which you are seeking to be included on the electoral roll is “fictitious”, “frivolous” or “is not the name by which the person is usually known”. I am also required to consider whether including your enrolment claim would be “contrary to the public interest” in accordance with subsection 93A(3) of the Act.
In my letters I also advised you that the type of evidence which you would need to provide would include formal documents such as Vehicle Registration details, income tax returns, Medicare Card, Pensioner Concession Card, Health Care Card, bank account details and Council notices.
In my letter of 19 August 2007 I noted that the name on your driver’s licence does not correspond with the name under which you are seeking to be enrolled and that I considered that there was prima facie evidence that I should refuse to include you on the electoral roll under the name you claim for enrolment. I also advised you that, if you were unable to provide evidence within seven days, I may need to consider your claim for enrolment on the evidence before me.
I understand that, at the proceedings today in the Federal Court in Melbourne, you indicated that you were not willing to provide me with any additional information or evidence in support of the enrolment application.
As regards section 93A(2)(a) of the Act, I note that the name Arthur Dent is the name of a fictitious character in the Hitchhiker’s Guide to the Galaxy, a novel by Douglas Adams. I consider that the name Arthur Dent used by you is fictitious.
As regards section 93A(2)(b) of the act, I note that on your claim for enrolment form, you provided the AEC with your driver’s licence number. The driver’s licence which corresponds to that number is held in the name of Albert Langer. Given that you say you are using a driver’s licence in the name of Albert Langer, I consider that Arthur Dent is not the name by which you are usually known.
As regards section 93A(3) of the Act, I have formed the view that it is contrary to the public interest to place a name on the electoral roll that is not supported by any evidence of identity.
In these circumstances, I hereby decide to refuse your application for enrolment under section 96 of the Act in accordance with section 93A of the Act.
I note that any of the grounds of section 93A of the Act is a sufficient reason for refusing your claim for enrolment.
It follows that your request under section 104 of the Act must be refused.
I am now required to also advise you that my decisions under section 96 and 93A of the Act are reviewable decisions under section 121 of the Act. You are able to make an application for review of my decisions by the Administrative Appeals Tribunal within 28 days of being notified of them. The address details for the Administrative Appeals Tribunal in Melbourne are attached.’
I consider that the strongest ground on which the second respondent might have been entitled to refuse to enrol the applicant was that provided by s 93A(2)(b) of the Act. Section 93A is in substantially similar terms to s 98A, which was set out in the letter from the Commission quoted at [8] above. Section 93A provides:
‘(1)This section applies to the inclusion of a person’s name in a Roll under a provision of this Part.
(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)is not written in the alphabet used for the English language;
(3)A Divisional Returning Officer or 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.
(4)A Divisional Returning Officer or Australian Electoral Officer who decides under this section to refuse to include a person’s name in a Roll must notify the person in writing of that decision.’
Contrary to the conclusion which I have provisionally reached of the purpose of this interlocutory application, the applicant contended that the second respondent was not entitled to consider that the name which the applicant sought to have included in the relevant roll was fictitious or was not the name by which the applicant is usually known. Accordingly, so the argument went, the second respondent had no discretion to refuse, pursuant to s 93A(1), to include the applicant’s name “Arthur Dent” in the relevant roll. According to the applicant, his mere assertion that “Arthur Dent” is the name by which he is usually known is sufficient, in the absence of other information tending to the contrary, to compel the second respondent to consider that “Arthur Dent” is the name by which he is usually known.
The name appearing on his driver’s licence and the name under which he had previously been enrolled pursuant to the Act were not capable of being information tending to the contrary because, the applicant said, it is notorious that records of names of those kinds can be overtaken by genuine changes in the name by which a person is usually known. That sometimes occurs, for example, on the marriage of a woman or after a divorce or in consequence of a decision take for some other reason by the person bearing the name. The applicant pointed to penalties imposed by the Act for making false or misleading statements as reinforcing the contention that his assertion alone was sufficient to compel the conclusion that “Arthur Dent” is the name by which he is usually known.
However, I am not persuaded that the test created by s 93A(2)(b) is a subjective one in the sense that it can be satisfied by a unilateral declaration or assertion by the person seeking enrolment that he or she is usually known by the name under which enrolment is sought. In my view, the test is an objective one and the Divisional Returning Officer or Australian Electoral Officer is entitled to require provision of information from persons with whom the applicant for enrolment is usually in contact, or could be expected to be in contact in the conduct of his or her ordinary human affairs. It is notorious that no citizen lives entirely in a vacuum and it is reasonable, in my view, for the decision-maker to proceed on the assumption that information from third persons is available or will be available, if a person is in fact usually known under the name in which he or she seeks to be enrolled.
The applicant also pointed to s 102(1)(A) of the Act which provides;
‘Before dealing with a claim under paragraph (1)(b), (ba) or (c), a Divisional Returning Officer may make any inquiries the officer thinks necessary.’
That subsection, I regard, as purely facultative, enabling, but not requiring, the relevant returning officer to make inquiries after receiving a claim for enrolment. There may be circumstances in which no time is afforded for the making of those inquiries before the decision has to be made.
Reliance was also placed by the applicant on s 106 of the Act which provides;
‘Where a person, whose name has been placed on the Roll for a Division, is not entitled to enrol for that Division and that person secured enrolment pursuant to a claim in which the person made a false statement, the Divisional Returning Officer for that Division, upon receipt of a certificate from the Australian Electoral Officer setting forth the facts, may, at any time between the date of the issue of the writ for an election for that Division, and before the close of the polling at that election, remove the name of that person from that Roll.’
That section was said adequately to protect the integrity of the Roll in the event of information coming to light would contradict the assertion which, the applicant says, compels his inclusion in the roll under the name, Arthur Dent. However, in my view, that consideration does not aid in the construction of s 93A for the reasons which, with necessary brevity I have endeavoured to explain. I consider that it was open to the Divisional Returning Officer or the Australian Electoral Officer, on the information before him, to consider that the name, Arthur Dent, is not the name by which the applicant is usually known.
It follows that I have not been persuaded that there has been an error of law by the second respondent of a kind which would compel the making of a mandatory injunction requiring the enrolment of the applicant in the relevant part of the roll under the name Arthur Dent. For these reasons, the application for interlocutory relief will be refused. I shall adjourn to a date to be fixed a further directions hearing in this matter when attention can be given to the formulation of any claim for substantive relief and any orders which should be made in consequence of the reasons which I have just articulated or of the order which I make today, namely that the application for interlocutory relief be refused.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 7 November 2007
Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Dr S Donaghue (31 October);
Ms R Orr (1 November)Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 October and 1 November 2007 Date of Judgment: 1 November 2007.
0
0