Gallagher and Australian Electoral Commission

[2008] AATA 127

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 127

ADMINISTRATIVE APPEALS TRIBUNAL      )

) No 2007/4898 & 2008/0002

GENERAL ADMINISTRATIVE DIVISION		)
Re		SEAN GALLAGHER

Applicant

And AUSTRALIAN ELECTORAL COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date8 February 2008

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in these matters, the Decisions under review are AFFIRMED.

..................[sgd]......................

M D Allen
  Senior Member

CATCHWORDS

ENROLEMENT OBJECTION – review of decisions made by respondent of objections made by applicant to enrolment of three electors who did not reside at the addresses provided to respondent as their places of abode – factual matrix surrounding decision under review at time decision was made – intention of elector at time decision was made – supervening events altering that intention – assertion that certain facts exist is no evidence of the existence of those facts – electors stated  temporarily absent from normal place of abode because of renovations – renovations delayed – absence of any evidence to the contrary – decisions under review affirmed

LEGISLATION

Commonwealth Electoral Act 1918 sections 114(4) and 117

CASE LAW

Shi v Migration Agents Registration Authority [2005] AATA 904

REASONS FOR DECISION

8 February 2008           Senior Member M D Allen 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         [sgd]  Mwela Kapapa         
           .................................................

Associate

Date of Hearing  8 February 2008

Date of Decision  8 February 2008

Solicitor for the Applicant            Self-represented 

Solicitor for the Respondent       Australian Electoral Commission, Legal Services Branch

EXTRACT OF TRANSCRIPT OF PROCEEDINGS                 [11:13 am]

MR ALLEN:   There are before me this morning two applications to review decisions of the Australian Electoral Office from State Manager for the Australian Electoral Commission for the State of New South Wales.  The proceedings arise out of objections made by the Applicant to the enrolment of three electors residing in Sydney’s eastern suburbs.  Basically, the Applicant alleged to the Respondent, initially to the divisional returning officer of the applicable electorate, that the persons concerned did not live at the addresses which they had provided to the Respondent as their places of abode. 

The objection was made pursuant to subsection (4) of section 114 of the Commonwealth Electoral Act 1918. Subsection (4) states, inter alia, that the Divisional Returning Officer for a division must object to the enrolment of a person for a subdivision if at the date of objection there are reasonable grounds for believing that the person does not live at that address and has not lived at that address for a period of at least one month. The Applicant as an elector in the particular electorate is entitled to make the objection. In section (4) of the CEA, the term real place of living is defined as including the place of living to which a person when temporarily living elsewhere has an intention of returning for the purposes of continuing to live at that place.

The only other matter I would mention then is that consistent with the judgment of the Full Court of the Federal Court, in Shi v Migration Agents Registration Authority [2005] AATA 904. My task is to examine the factual matrix surrounding the decision under review at the time the decision was made. I consider that to be important in this particular matter because a person may well have an intention at the time the decision under review was made but supervening events alter that intention.  For example, a person may well have an intention to return to a particular dwelling house by a certain date but if, for example, renovations are delayed or some natural disaster strikes the house, then obviously his intention cannot be fulfilled although he or she had the requisite intention at the relevant time.

Now, in this matter all three electors were contacted by the Australian Electoral Commission acting through, first of all, the division returning officer. In one case, the divisional returning officer was advised orally and that is permitted pursuant to section 117 of the Commonwealth Electoral Act 1918 and in the other case there was both an oral and a written response to the notice of the objection. Both responses can be summarised by saying that the parties stated that they were temporarily absent from their normal place of abode because renovations were being carried out and they had the intention to return to the address which was shown in the electoral roll as the place at which they lived.

The Respondent in the absence of any evidence to the contrary quite properly acted upon that advice and overruled the objection.  The Applicant has sought to challenge that decision in these proceedings.  Suffice it to say that there has not been any evidence whatsoever adduced by the Applicant to show that the decision under review was wrong.  It must be stressed that an assertion by the Applicant that certain facts exist is not evidence of the existence of those facts.  All this matter came down to was the Applicant making assertions not backed up by any real evidence whatsoever and in such a case, I cannot see why the decision under review should be set aside.  As I am satisfied there are no grounds for setting the decisions aside, the decisions under review are affirmed. 

END OF EXTRACT  [11:20 am]