Howard v Australian Electoral Commission

[2000] FCA 1453

FEDERAL COURT OF AUSTRALIA

Howard v Australian Electoral Commission [2000] FCA 1453

SUSAN ANNE HOWARD V AUSTRALIAN ELECTORAL COMMISSION

N 397 of 2000

MATHEWS J
SYDNEY
10 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N397 OF 2000

BETWEEN:	SUSAN ANNE HOWARD APPLICANT
AND:	AUSTRALIAN ELECTORAL COMMISSION RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	10 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N397 OF 2000

BETWEEN:	SUSAN ANNE HOWARD APPLICANT
AND:	AUSTRALIAN ELECTORAL COMMISSION RESPONDENT

JUDGE:	MATHEWS J
DATE:	10 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 March 2000, affirming a decision by an Australian Electoral officer under s 120(6) of the Commonwealth Electoral Act 1918 (“the Act”) which in turn affirmed an earlier decision to reject the applicant’s (Ms Howard’s) application for enrolment onto the electoral roll.

2. Ms Howard was born in England on 4 September 1950.  She arrived in Australia eight years later and, apart from a period of approximately one year, has remained in Australia ever since.  She is a British subject and has not taken out Australian citizenship.  Between 1973 and 1977 her name was on the electoral roll in the Parramatta Division, being the area where she then lived.  At that time, British subjects were entitled without restriction to have their names entered on the electoral roll in Australia.

3. Ms Howard returned to England for about a year between the middle of 1978 and the middle of 1979.  Her name appeared on the electoral roll in September 1977 but was not on it when the next roll was issued in August 1979.  She did not attempt to reinstate her name onto the roll until December 1984. 

4. The substantial issue before the AAT related to the effect of s 93 of the Act. Section 93(1) provides 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.”

5. As Ms Howard's name had been removed from the electoral roll some time between 1977 and 1979, and as by January 1984 she had taken no steps to have it returned to the roll, it is conceded that on 25 January 1984 her name was not on the electoral roll.  On 11 December 1984, Ms Howard, who was then living in Neutral Bay in the North Sydney Division, applied for enrolment in that division.  In the application form, she indicated that she was an Australian citizen “or” an eligible British subject, namely a British subject who was on the roll immediately before 26 January 1984.  No confirmation was sought of either of these matters.  They were apparently accepted without query by the divisional officer, and later that month she was enrolled in the North Sydney Division.  In 1994 her name was again deleted from the roll, apparently because she was not living at her previously stated address.

6. On 29 September 1999 Ms Howard applied for enrolment in the North Sydney Division.  At that time, she was asked to give more precise details as to her entitlement for enrolment, and she responded that she was neither an Australian citizen, nor was her name on the roll immediately before 26 January 1984.  Accordingly, a decision was made to reject her application for enrolment.  It was this decision which was upheld by the Tribunal.

7. The Tribunal pointed out in its decision that the terms of section 93(1) are inflexible. The section, as the Tribunal commented:

   “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”.

   Accordingly, the Tribunal had no alternative but to affirm the decision under review.  The Tribunal commented that there appeared to be no good reason for the deletion of Ms Howard’s name from the roll either in 1979 or in 1994.  However this was of no assistance to her in these proceedings.  It did not derogate from the fact that her name was not physically on the electoral roll on 25 January 1984.

8. In this Court Ms Howard, who was unrepresented, did not challenge the factual propositions underlying the Tribunal’s decision.  She conceded that her name was not on the electoral role immediately before 26 January 1984.  However, she pointed out that she had lived in this country virtually the whole of her life and that she was voting and on the electoral roll for some seven years before January 1984, albeit not immediately before that date.

9. The Notice of Appeal to this Court asserted that the Tribunal committed a jurisdictional error in “denying its jurisdiction” to find that the decisions to remove Ms Howard’s name from the electoral roll in 1979 and again in 1994 were void. It was also claimed that the Tribunal misinterpreted the Act in failing to interpret s 93 in the following manner:

   “A.that where an elector was once validly enrolled on an electoral roll they remained on that electoral roll until such time as one of the grounds for removal of their name was made out and a valid decision to remove their name from that electoral roll was made;

   B.that the elector's name was on that electoral roll for that purposes of section 93 immediately before 26 January 1984 unless both of the requirements above were met.”

10. An Amended Notice of Appeal was filed in July of this year, and an application under s 39B of the Judiciary Act was added to the existing grounds of appeal.  That sought declarations that each of the decisions made by the then relevant officer in 1978 to 1979 and again in 1994 to remove Ms Howard's name from the electoral roll, were void.

11. In response to the matters raised in the Amended Notice of Appeal the respondent filed an affidavit of Geoffrey Paul Marles dated 4 September 2000.  Mr Marles is a Deputy Director of Enrolment employed by the Australian Electoral Commission.  He is familiar with the management and administration of the enrolment of names for the Commission in New South Wales and is conversant with the ways in which a person may be legally added to or removed from the electoral roll.

12. Mr Marles’ affidavit annexed copies of documentation relating to the removal of Ms Howard's name from the electoral roll both in 1979 and in 1994. Although the original documentation has now been lost, Mr Marles’ affidavit explains the process by which Ms Howard's name was removed from the roll on each occasion. As Ms Howard has conceded today, Mr Marles’ affidavit clearly shows that the removal of Ms Howard's name from the roll on each occasion was effected pursuant to legitimate processes taken under the Act. This provided evidence, which was not available to the Tribunal, that the removal of Ms Howard’s name was a valid exercise of legislative power. It follows that no issue remains relating to the claims of jurisdictional error in the notice of appeal, nor in relation to the declarations sought under s 39B of the Judiciary Act.

13. This also resolves the only remaining issue raised in the Notice of Appeal.  A valid decision having been taken to remove Ms Howard's name from the roll in 1979, there is no basis for suggesting that her name should be deemed to have remained on the roll in January 1984.

14. As I have indicated, Ms Howard is not represented today. She made a statement to the Court in which she conceded that the legal technicalities were not in her favour. She pleaded for justice to be done. Her situation might well attract sympathy, however the courts and tribunals are obliged to apply the law as it stands. Section 93, as the Tribunal observed, is in peremptory terms and allows of no exceptions. Accordingly, I have no choice but to dismiss the appeal to this Court.

15. The formal orders I make are that the appeal be dismissed; the applicant is to pay the respondent's costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:  10 October 2000

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Applicant:
Counsel for the Respondent:	Geoffrey Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 October 2000
Date of Judgment:	10 October 2000