Liberal Democratic Party and Australian Electoral Commission

[2021] AATA 4884

Liberal Democratic Party and Australian Electoral Commission [2021] AATA 4884 (21 December 2021)

Division:GENERAL DIVISION

File Number:          2021/9639

Re:Liberal Democratic Party

APPLICANT

AndAustralian Electoral Commission

RESPONDENT

DECISION

Tribunal:Justice T Thawley, Deputy President

Date:21 December 2021

Place:Sydney

On 10 December 2021, the applicant lodged an application for review of a decision of a delegate of the respondent dated 23 November 2021. The applicant made a request for an order staying or otherwise affecting the operation or implementation of the decision of the delegate of the respondent.

The Tribunal is satisfied that the decision of the delegate of the respondent dated 23 November 2021 is not reviewable by this Tribunal.

The Tribunal makes the following orders:

1.The Tribunal refuses the applicant’s request pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of the decision of the delegate of the respondent dated 23 November 2021.

2.Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

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

Justice T Thawley, Deputy President

Catchwords

ADMINISTRATIVE LAW – review of decision of delegate of Australian Electoral Commission to uphold objection under s 134A of the Commonwealth Electoral Act 1918 (Cth) to continued use of the name ‘Liberal Democratic Party’ and the abbreviation ‘Liberal Democrats’ – urgent application for stay of decision of delegate of Australian Electoral Commission – where Administrative Appeals Tribunal does not have jurisdiction to entertain application for review of underlying decision – no power to grant stay – applications for review and for stay dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

Commonwealth Electoral Act1918 (Cth) ss 16(1), 134, 134A, 137, 141

REASONS FOR DECISION

Justice T Thawley, Deputy President

Provided orally         21 December 2021
Written reasons       24 December 2021

1. These reasons are expressed in short form given the urgency of the application.

2. On 9 November 2021, the Australian Electoral Commission received an objection under section 134A of the Commonwealth Electoral Act1918 (Cth) from the registered officer of the Liberal Party of Australia objecting to continued use of the name ‘Liberal Democratic Party’ and the abbreviation ‘Liberal Democrats’. Ms Joanne Reid, as delegate of the Commission for the purposes of section 134A, made a decision on 23 November 2021 to uphold the objection under section 134A(1)(d) and notified the registered officer of the Liberal Democratic Party that the party would be deregistered under section 137 if the party does not make an application under section 134 to change its name and abbreviation within one month of the date of the notice, or if the party makes such an application but the application is refused: section 134A(1)(e).

3. On 10 December 2021, the Liberal Democratic Party commenced proceedings in the Administrative Appeals Tribunal, seeking review of that decision, and by an urgent application sought an order from the Tribunal seeking a stay under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).  The Commission says that the Tribunal does not have power to grant a stay because it does not have jurisdiction to entertain the application for review of the underlying decision.  The Commission’s submission is based on the language of section 141 of the Electoral Act which, relevantly, includes:

   141  Review of certain decisions

   (1)  In this section:

   decision has the same meaning as it has in the Administrative Appeals Tribunal Act 1975.

   Electoral Commission does not include a delegate of the Electoral Commission.

   person includes a political party.

   reviewable decision means a decision of the Electoral Commission, or of a delegate of the Electoral Commission:

   …

   (ca)  to uphold an objection under subsection 134A(1); or

   (cb)  to refuse to uphold an objection under subsection 134A(1); or

   …

   (2)  Where a delegate of the Electoral Commission makes a reviewable decision, a person affected by the decision who is dissatisfied with the decision may, within the period of 28 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commission (either before or after the expiration of that period) allows, make a written application to the Commission for the review of the decision by the Commission, specifying in the application an address of the applicant.

   (3)  There shall be set out in the application under subsection (2) the reasons for making the application.

   (4)  Upon the receipt of an application under subsection (2) for the review of a reviewable decision, the Electoral Commission shall review that decision and shall make a decision:

   (a)  affirming the decision under review;

   (b)  varying the decision under review; or

   (c)  setting aside the decision under review and making a decision in substitution for the decision so set aside.

   (5)  Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision made by the Electoral Commission or a decision under subsection (2) or (4).

   …

4. Dr Humphreys for the Liberal Democratic Party made several submissions as to why the Tribunal has jurisdiction by reason of section 141(2) of the Electoral Act.  In my view, the Tribunal does not have jurisdiction.  The scheme of the legislation is for the Tribunal to have jurisdiction after internal review.  There is no jurisdiction to review the decision of a delegate in relation to which internal review has not been sought.

5. The reference in subsection (5) to a ‘reviewable decision made by the Electoral Commission … under subsection (2) …’ is a reference to a decision of the Commission to grant or refuse a ‘further period’ of time after 28 days within which to seek review of a reviewable decision of a delegate. Properly construed, section 141 does not give the Tribunal jurisdiction in respect to the delegate’s decision the subject of the applicant’s application for review. It follows that the Tribunal also does not have power to grant a stay under section 41(2) of the AAT Act.

6. That does not necessarily leave the Liberal Democratic Party without other avenues of redress, but the avenue of redress does not lie in the Tribunal.  For those reasons, the application for a stay is dismissed as is the application for review.

7. Dr Humphreys also submitted that Ms Reid had been not properly delegated with the Commission’s power to uphold an objection under section 134A(1)(d) or, alternatively, that she was acting as the Commission’s agent in upholding the objection. I am satisfied that Ms Reid was acting as the delegate of the Commission under section 16(1) and I am satisfied that the terms of the delegation, dated 29 March 2019, cover the decision that Ms Reid made.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Justice T Thawley, Deputy President

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Associate

Dated: 24 December 2021

Date of Hearing:

21 December 2021

Counsel for the Applicant:

Counsel for the Respondent:

Dr J Humphreys appeared on behalf of the Applicant

Mr Brendan Lim

Solicitors for the Respondent:

Australian Government Solicitor