DHCD and Electoral Commissioner (Cth)

[2024] AATA 1802

DHCD and Electoral Commissioner (Cth) [2024] AATA 1802 (18 June 2024)

Division:GENERAL DIVISION

File Number:          2023/5782

Re:DHCD

APPLICANT

AndElectoral Commissioner (Cth)

RESPONDENT

DECISION

Tribunal:Deputy President Hanger

Date:18 June 2024  

Place:Brisbane

The Tribunal sets aside the internal review decision dated 11 July 2023 and in substitution, the Tribunal:

1. sets aside the decision of the delegate of the Commissioner, made on 24 June 2023, to enrol the applicant at 34/497 Wickham Terrace, Spring Hill, QLD 4000 pursuant to section 103B(3) of the Act;
2. substitutes a decision that the applicant not be enrolled at 34/497 Wickham Terrace, Spring Hill, QLD 4000, as the applicant does not live at that address.

................[SGD].................

Deputy President Hanger

Catchwords

ELECTORAL – Australian Electoral Commission – Enrolment on Commonwealth Electoral Roll – enrolment decision – enrolment using data obtained from other agencies – address change – address no longer occupied – application for review of enrolment decision – decision under review set aside  

Legislation

Commonwealth Electoral Act 1918 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Deputy President Hanger

18 June 2024

INTRODUCTION

1. At the outset of these proceedings, I gave leave to the respondent by consent to amend the title of the respondent to Electoral Commissioner (Cth) (Commissioner).

   Application for Review

2. DHCD seeks a review of the respondent’s decision to enrol the applicant pursuant to section 103B (3) of the Commonwealth Electoral Act 1918 (Cth) (the Act).

3. On 23rd of May 2023 the Australian Electoral Commission (AEC) emailed the applicant advising him that it had received information indicating that he lived at 34/497 Wickham Terrace, Spring Hill Queensland 4000 (Spring Hill address) and that it proposed to enter his name and other particulars on the electoral roll including the Spring Hill address. He was advised that subject to his providing further information, that enrolment would be confirmed after 28 days and that if he did not live at the proposed address or was ineligible to vote, he should advise the AEC within 28 days.

4. On 16 June DHCD advised that he no longer resided at that address and that he intended to travel for the next 12 to 18 months and that he did not approve of compulsory voting.

5. On 21 June, the AEC sent a letter to him advising that voting is compulsory and that the AEC was authorised to enrol him on information that it had obtained from other government agencies.

6. On 24 June DHCD was enrolled based on data obtained from Centrelink at the Spring Hill address. The applicant requested a review of that decision (internal review decision). That decision was affirmed on 11 July 2023 in the following terms;

   ‘I have determined that you are eligible for enrolment and the decision to take action to enrol you under section 103B of the Electoral Act to be upheld’.[1]

   [1] Exhibit 1: T2, page 6.

7. On 7 August 2023 DHCD applied to this tribunal for a review of the internal review decision (reviewable decision).

8. The respondent now agrees that it accepts the statement of the applicant that he no longer lives at the Spring Hill address.

   LEGISLATIVE SCHEME

   Commonwealth Electoral Act 1918 (Cth)

9. Section 93 of the Act deals with persons who are entitled to enrolment and to vote. There is no issue but that the applicant is so entitled.

10. Section 103B of the Act deals with the enrolment of an unenrolled person. It provides that if the Commissioner is satisfied that the person is entitled to enrolment and has lived at an address for at least one month, the Commissioner may give the person a notice in writing that it is proposed to enter the person’s name on the roll.

11. Section 103B(2)(b) provides that the Commissioner will not enrol the person if the Commissioner is satisfied within 28 days of his notice that the person does not live at the proposed enrolment address.

12. A decision under section 103B(3) is a reviewable decision and capable of internal review under the provisions of section 120(2)(6).

13. That reviewed decision is reviewable by this Tribunal pursuant to section 121(1)(k).

    RESPONDENT’S SUBMISSIONS

14. The matter is properly constituted before this tribunal, and the Respondent and the Tribunal accept that the applicant does not live at the Spring Hill address. The respondent therefore accepts that on review, the reviewable decision should be set aside.

15. That disposes of the matter but out of respect for a great deal of work in preparing a submission by DHCD, I make a couple of comments on that submission.

    APPLICANT’S SUBMISSIONS

16. DHCD writes at length and cites a great deal of authority with respect to adversarial and inquisitorial approaches by administrative tribunals. There are no disputed facts concerning the matter in issue before me and the differing approaches of adversarial and inquisitorial tribunals, while interesting, is not relevant in this context.

17. He also makes submissions about his attempt to secure ‘silent elector’ status. An application in relation to that status is not before the Tribunal and in any event is irrelevant since he has achieved an outcome of not being registered as an elector.

18. I have the impression that his principal concern relates to mandatory voting and that is not a matter for this tribunal to consider.

19. The respondent submits and I accept that the order that the tribunal should make is as follows.

    DECISION

20. The Tribunal sets aside the internal review decision dated 11 July 2023 and in substitution, the Tribunal:

    (a)sets aside the decision of the delegate of the Commissioner, made on 24 June 2023, to enrol the applicant at 34/497 Wickham Terrace, Spring Hill, QLD 4000 pursuant to section 103B (3) of the Act; and

    (b)substitutes a decision that the applicant not be enrolled at 34/497 Wickham Terrace, Spring Hill, QLD 4000, as the applicant does not live at that address.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Hanger

..........[SGD]...........

Associate

Dated: 18 June 2024

Date of hearing:	27 May 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Keith Sypott Australian Government Solicitor