Howard and Australian Electoral Commission

[2000] AATA 242

DECISION AND REASONS FOR DECISION [2000] AATA 242

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N99/1632

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SUSAN ANNE HOWARD
  Applicant
           And    AUSTRALIAN ELECTORAL COMMISSION   
  Respondent

DECISION

Tribunal       Mr B.J. McMahon (Deputy President)    

Date28 March 2000

PlaceSydney

Decision      The decision under review is affirmed.   
  (Sgd) BJ McMahon ..............................................
  Deputy President
CATCHWORDS
ELECTORAL – enrolment on a Commonwealth electoral roll – whether British citizen permanent resident in Australia eligible for enrolment – on electoral role before and after but not on 25 January 1984 – whether eligibility to vote without enrolment sufficient – reasonable cause for not being on roll irrelevant – decision affirmed
Commonwealth Electoral Act 1918 ss 93(1), 99A, 101, 105, 120, 121
Geoffrey and Nora Lake and Australian Electoral Officer [1998] AATA 83

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)     

1. This is an application brought under section 121 of the Commonwealth Electoral Act 1918 to review a decision made by an Australian Electoral Officer under subsection 120(6). The decision was to affirm an earlier decision made by another officer to reject an application for enrolment on the electoral roll.

2. Ms Howard was born in London, England on 4 September 1950 and remains a British subject. Her name was not recorded on a roll for a Division on 25 January 1984. It was the Commission's submission that by virtue of the provisions of subsection 93(1), Ms Howard was therefore not entitled to enrolment. That subsection is as follows:

   "93      

   (1)       Subject to subsections (7) and (8) and to Part VIII, all persons:
             (a)        who have attained 18 years of age; and
             (b)       who are:

   (i)        Australian citizens; or

   (ii)persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984:

   (A)on the roll for a Division; or

   (B)on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922;

   shall be entitled to enrolment."

1. In order to understand the submission, it is necessary to examine Ms Howard's enrolment history. She came to Australia in 1958 at the age of 8 and, except for a period of 11 months overseas, she has lived in Australia since then.

2. She reached the age of 21 (then the voting age) on 4 September 1971. According to a Statement of Issues filed with this Tribunal on 29 November 1999 by the Australian Electoral Officer for New South Wales, no record of electoral enrolment whatever had been found for Ms Howard prior to and including 25 January 1984. That document asserted that Ms Howard did not lodge an enrolment form until 24 October 1984, well after the January deadline.

3. In response to this, Ms Howard produced copies of the Commonwealth Electoral Roll for the Division of Parramatta for the years 1973, 1974, 1976 and 1977. Her name was shown in these documents and she was described as living at 2/13 Macquarie Street, Parramatta in 1973 and 1974 and 305 Church Street, Parramatta in 1976 and 1977. No explanation was offered by the Commission for its apparent oversight. The authenticity of these extracts was not questioned. The Commission simply appeared to accept that its earlier categorical statement, that there had been no previous enrolment, was wrong. No indication was given of the extent of searches that had been undertaken to enable such a statement to have been made.

4. Instead, a letter was written to this Tribunal on 14 March 2000 on behalf of the Australian Electoral Officer for New South Wales, referring to this documentary evidence which clearly disproved the earlier statement of the Commission. The letter then went on to assert that the last record of Ms Howard's enrolment was from the printed roll dated 25 February 1977 and that by the time of the next printed roll dated 16 September 1977, her name had been removed from that Subdivision. A copy of that roll was attached to the letter, which did not show her name.

5. Nevertheless, at the hearing the Australian Electoral Officer for New South Wales representing the Commission, agreed that another error appeared to have been made and that further checks revealed that, in fact, Ms Howard's name was on the roll dated 16 September 1977, but did not appear on the next roll dated 3 August 1979. The officer was unable to state what had happened between September 1977 and August 1979 to account for the fact that the applicant's name was missing from the later roll. It is, of course, quite possible that the name was removed for legitimate reasons. On the basis of the evidence that has been put before me, however, I do not feel confident enough to exclude the possibility of sheer error.

6. Ms Howard left Australia about the middle of 1978 for an overseas visit and returned in May 1979. By this time, she may or may not have been on the roll. The only evidence (and I was not shown any written records to support this) was that she did not appear on the roll which was issued in August 1979.

7. Her evidence was that she has suffered from mental illness from an early age and has had a number of periods in hospital for psychiatric treatment. Between her return to Australia in May 1979 and 1983, she said that her condition deteriorated quickly. She was in no condition to attend to her civic obligations, nor was she aware of an advertising campaign said to have been conducted by the Government in November 1983 concerning impending changes to the law which would be of concern to British subjects.

8. Evidence as to her state of health was not questioned and I have no reason to reject it. She was in fact in hospital on 3 occasions during 1983, twice at Royal North Shore Hospital and once at Westmead. During all of that time she was receiving psychiatric treatment. Her evidence was that prior to that time (ie between 1979 and 1983), her mental state was unstable and she was "fighting to keep out of hospital". She certainly was not focussing on electoral matters.

9. The consequence was that it became necessary for her to apply for enrolment again. This was done in December 1984, some 11 months after the critical date appearing in paragraph 93(1)(b)(ii) quoted above. That application contained a declaration in the following terms:

   "I am entitled to enrolment as a Commonwealth and New South Wales elector because
   (a)       I have attained 18 years of age; and
   (b)       I have lived continuously in Australia for at least 6 months; and

   (c)I am an Australian citizen (OR a British subject who on 25 January 1984 was on a Commonwealth or State of New South Wales Legislative Assembly electoral roll); and

   (d)       I have lived at my present address (or elsewhere within the Subdivision) for a period of 1 month, immediately before the date of this claim;
   and I claim enrolment for the Subdivision where I now live.
   I declare that the statements made in this claim, including my personal particulars set out above, are true to the best of my knowledge and belief.
   Susan A Howard  11/4/84
   Personal Signature or Mark of Claimant                  Date"

1. I do not know why some of the words in this declaration were underlined in print. Perhaps there was an intention to draw the declarant's attention to what was considered the most important aspects of the declaration. Whatever the reason, the declaration of the applicant put in the alternative in paragraph (c) above was not correct as Ms Howard was neither an Australian citizen, nor a British subject who was on a roll on 25 January 1984. I do not suggest that this was a deliberately false declaration or that Ms Howard set out to deceive the Commission. She was not aware of the significance of the reference to British subjects and had been in ill health for some time. The reference in the application form to her former address as 305 Church Street Parramatta may well have been a reference to her understanding that she was enrolled for that address but was obliged to apply again because she had moved to a different Division.

2. At any event, the application for enrolment was accepted and Ms Howard was enrolled from 11 December 1984 in the North Sydney Division. She remained on this roll until 1994. The reason why she was removed from the roll is not clear. It was certainly not because she did not comply with subsection 93(1).

3. Document T11 is a computer printout prepared as part of the roll management system. It identifies Ms Howard by date of birth and identification number. It notes that she was enrolled on 4 August 1993, possibly the date of the last roll – certainly not the date of her initial enrolment in December 1984 – and sets out a deletion date of 2 December 1994. The reason given is in a computer code O-N which I was told meant that she was not at the address given, namely 19/64 Ben Boyd Road, Neutral Bay. I have been unable to find any direct authority in the Act empowering a Divisional Returning Officer, or any other officer of the Commission, to delete the name of an enrolled person because that person is said not to be living at a stated address. Section 105 does not specifically grant such a power. Furthermore, if there were any such power, I would expect it to be exercised in accordance with well-accepted rules of procedural fairness. Thus, one would expect that an enrolled person be given an opportunity to show cause why the enrolment should not be cancelled and the person's name deleted from the roll. If the power of deletion arose from the fact that the person concerned no longer lived at a stated address, then I would expect notice to be given in some other acceptable form. However, as I have said, I have been unable to identify such a specific power, nor was I referred to any such power by the officer representing the Commission at the hearing.

4. Ms Howard had moved from Parramatta to Neutral Bay in the Division of North Sydney in 1981 and thereafter lived at a number of addresses in that Division. From 1984 to 1992, she lived at 170 Ben Boyd Road. Between 1992 and April 1994, she lived at 64 Ben Boyd Road. An amendment card prepared by an officer of the Commission noted this alteration in her address on 20 July 1993 (document T10).

5. There is no indication in document T11 when the check on Ms Howard's address was made. She was deleted from the roll on 2 December 1994. She was living at the stated address until April 1994. There is nothing to indicate how the check was made nor what caused it to be made.

6. She had in fact moved in April 1994 to a nearby address (still within the same Subdivision) at 2 Highview Avenue, Neutral Bay, where she continued to live between April 1994 and January 1995. Had the 1984 enrolment been valid, then Ms Howard would have been entitled, in my view, to continue to be enrolled in the same Subdivision, subject to her obligation to notify a change of address. However, unknown to her, she had been deleted from the roll. She did not discover this fact until some time afterwards.

7. As she was anxious to vote in the republic referendum, she made application again on 29 September 1999 for enrolment. This time she was living at 6/89 Ridge Street, North Sydney. The form, reproduced as document T13, is much clearer in its requirements than the form which she signed in December 1984. It requires an answer to a specific question whether the applicant is an Australian citizen. It then requires details if citizenship was acquired otherwise than by birth. It sets out a requirement for the former enrolled address and finally requires the applicant to declare that she is eligible to enrol for elections, without stating what the requirements of that eligibility were.  Following some correspondence, the application was refused for the reasons set out at paragraph 2 of this document. This is the decision that was confirmed by the Australian Electoral Officer for New South Wales and is the decision which is the subject of the present review.

8. It will be seen that Ms Howard has been twice removed from the roll. The first occasion was on some unspecified date for some unspecified reason between 16 September 1977 and 3 August 1979. The second occasion was on 2 December 1994 on the unsubstantiated basis of non-residence at a particular address. There is no evidence that she was notified of either of these events, either personally or through a public notice, nor is there any evidence that she was given an opportunity to show cause why either of the removals should not occur.

9. It is true that subsection 93(1) is cast in inflexible terms. In Re Lake and Australian Electoral Officer AAT No 12620, 23 January 1998, Deputy President Forgie noted that:

   "If Mr and Mrs Lake's names were on the Commonwealth Electoral Roll on 25 January 1984, they are entitled to be enrolled on it now. If they were not included then they are not entitled now. Why they were not included on the roll on that date is not relevant. That they were not included is the only relevant matter and, indeed, the determinative matter of the current entitlement to be enrolled. "

1. Whilst I do not disagree with this general proposition, it seems to me, however, that entitlement to enrolment cannot be dependent upon an error. Obviously errors occur in the huge task of managing an electoral roll. The possibility of error is recognised in section 105. This empowers a Divisional Returning Officer to alter any roll kept by the Officer by correcting any mistake or omission in the particulars of the enrolment of an elector or (more relevantly) reinstating any other name removed by mistake. An alteration in the roll of this nature may be made at any time, pursuant to subsection 105(3). It would be possible, therefore, to reinstate Ms Howard's name to an electoral roll for a particular Division following the deletions in 1979 and 1994 if she were otherwise qualified for enrolment. In my view, however, she would not meet the qualification requirement either for the Parramatta or North Sydney Divisions.

2. I am not satisfied that the applicant's name was removed from the roll prior to 3 August 1979 for good reason. In fact, no evidence has been offered to explain why this occurred. Because of the confusion on the part of the Commission, it seems to me quite possible that the applicant's name was omitted in error. Her evidence (which was uncontradicted) was that she had returned to Australia in May 1979 and had continued to live in the same Parramatta Division in which she had previously been enrolled. If she was entitled to be enrolled at 3 August 1979, then she was entitled to remain enrolled for that Division until such time as she ceased to reside in it.

3. The evidence was that she moved to Neutral Bay in 1981. She would therefore have been entitled to have been enrolled in the Parramatta Division until that event. As she has not resided in the Parramatta Division for 19 years, she is now clearly not entitled to be reinstated to the status of enrolment in that Division.

4. Section 101(1) requires a new claim to be made for enrolment in the case of a transfer outside a Division. It was therefore necessary for Ms Howard to make the application, which she did, in December 1984. The application form was not as clear as later versions of the same form. Nevertheless, it contained statements which were not correct and which led to enrolment on a false basis. By December 1984, Ms Howard was no longer entitled to be enrolled because she remained a British subject and had not been entitled to be enrolled at 25 January 1984, having moved out of her electoral Division some 3 years earlier.

5. The fact that her application for enrolment was accepted did not cure the defect, although it was not this defect which led to her second removal from the roll. Had she been validly enrolled in 1984 then, in my view, the second removal could not have been justified. Subsection 101(5) obliges a person moving from one address to another in the same Subdivision to give notice in writing of the new address to the Divisional Returning Officer. Failure to give such notice constitutes an offence under subsection 101(6). It does not, however, disentitle the person to enrolment. The section imposes an obligation and carries a criminal sanction. Breach of the subsection, however, does not deprive a person, otherwise qualified, of his or her right to be enrolled.

6. Ms Howard may have been removed from the roll for the second time in 1994 for the wrong reason. However, in my view, she was not entitled to be there in the first place. Notwithstanding that the enrolment continued for a period of 10 years, it was built upon an insubstantial foundation at law. The removal could be justified on the basis of non-compliance with subsection 93(1) but not on the basis of non-compliance with subsection 101(5).

7. The present application must be viewed as a fresh application. Ms Howard is not entitled to enrolment because she is not an Australian citizen nor was she a British subject either enrolled or entitled to be enrolled as at 25 January 1984. I would point out for her benefit, however, that if she applies for a certificate of Australian citizenship, she may make a provisional claim for enrolment under section 99A which becomes, by virtue of that section, a claim for enrolment on the day on which the applicant is granted the certificate of citizenship.

8. As I have already noted, the terms of subsection 93(1) are inflexible. There were good reasons why Ms Howard was not enrolled at 25 January 1984. Her name had previously been removed from the roll without notice to her. Her health was such that she was unaware of any impending changes in the legislation. Her medical treatment precluded her, in any event, from responding appropriately, even if she had been made aware of the proposed changes. Unfortunately, none of these matters can be taken into account. The section operates in a mechanical way. It does not permit a decision-maker to take account of any possible reasons for non-enrolment on the critical day. It does not allow an officer to consider whether or not failure to achieve enrolment was due to a reasonable cause. There is no relevant ameliorative provision in Part VII of the Act. The Tribunal's powers are no greater than those of the Australian Electoral Officer. Both are bound by the terms of the legislation. Accordingly, I have no alternative but to affirm the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed:         J. Healy            .....................................................................................
  Jacqueline Healy, Associate

Date of Hearing  20 March 2000
Date of Decision  28 March 2000
Applicant  Self Represented
Respondent Representative    Ms F Howart,
  Electoral Commission Officer