John Mulholland v Australian Electoral Commission and Anthony Zegenhagen

[2011] AATA 717

[2011] AATA 717

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2010/2416
Re	John Mulholland
APPLICANT
And	Australian Electoral Commission
RESPONDENT
And	Anthony Zegenhagen
JOINED PARTY

DECISION

Tribunal

Justice Downes, President

Deputy President JW Constance

Date

13 October 2011

Date of Written Reasons

17 October 2011

Place

Sydney

Joinder application granted.

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

Garry Downes
President

CATCHWORDS

PRACTICE AND PROCEDURE – joinder application – Tribunal to consider evidence as it stands at the time of the hearing not at original jurisdiction – best information available

RELEVANT ACTS

Commonwealth Electoral Act 1918 (Cth)

CITATIONS

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

Justice Downes, President
Date	17 October 2011

1. The proceeding before the Tribunal is a complicated matter relating to the registration of the Democratic Labor Party as a political party under the Commonwealth Electoral Act1918 (Cth). Mr Zegenhagen claimed to the Australian Electoral Commission that he was the secretary of the party and its representative for the purposes of the Act and sought recognition as such, and that recognition was accorded to him by the Commission. Mr Mulholland says that he continues to be the appropriate representative, and has brought proceedings in the Tribunal for review of that decision.

2. The parties in the Tribunal, as the application is constituted at present, are Mr Mulholland and the Australian Electoral Commission.  Until recently, Mr Zegenhagen has not sought to be added as a party.  He did, however, recently apply to be added as a party, and that application was heard recently and refused for the very good reason that Mr Zegenhagen had not made application in time and that it did not appear that he would necessarily be able to add significantly to the material that was available through the Australian Electoral Commission.  After the decision to refuse Mr Zegenhagen’s application, the matter was referred to me for preliminary consideration of the way in which in the hearing of the matter should proceed in Melbourne tomorrow week, when it is listed for hearing before a Tribunal comprised of Deputy President Constance, Senior Member Handley, and myself.

3. On my reviewing the papers, it did occur to me that it might, having regard to the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, be appropriate that the Tribunal should have up-to-date information relating to the circumstances within the Democratic Labor Party. On the one hand it might be said that the Democratic Labor Party is continuing to operate effectively and held a national conference as recently as August this year, while on the other hand, it might be maintained that that activity is not truly activity of the Democratic Labor Party. Whether or not it is true activity of the party, it does seem to me that having regard to the decision in Shi’s case, it is something that the Tribunal should look at.

4. After all, what the Tribunal is engaging in is administrative decision making, and it has always been a principle of administrative decision making that the decision to be made should be based on the latest material, and made as at the latest point of time available, unless there is something in the legislation which requires something different.  This circumstance seems to me to have changed somewhat the question of how the proceedings should be made up in terms of parties.  Mr Zegenhagen will be able to present material about the question of whether the meeting in August this year was a true meeting of the party and without his presence it might be difficult for any evidence to be presented on that topic.

5. It seems to the Tribunal that it would be a pity to determine this matter on evidence of what occurred in 2009, if the facts and circumstances which have occurred subsequently might lead to a different view.  In fairness to Mr Mulholland, I should also say that after I explained to him the background of the matter, while he may not actually have consented to Mr Zegenhagen being added as a party to the proceedings, he very fairly indicated that it was not a matter with respect to which he was a particularly opposed.  In all those circumstances, I would propose that an order be making adding Mr Zegenhagen as a party to these proceedings.

   REASONS FOR DECISION

Deputy President JW Constance
Date	17 October 2011

1. I agree with the decision of Justice Downes, having heard the further information, and do not wish to add anything.

I certify that the preceding six (6) numbered paragraphs are a true copy of the reasons for decision herein of the Honourable Justice Downes, President in paragraphs one (1) to  five (5) and Deputy President JW Constance in paragraph six (6).

S. Robson, Associate:

Dated:       17 October 2011

Date of hearing	13 October 2011
Date final submissions received	13 October 2011
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitors
Joined Party	In person