McConell v ACT - [2020] ACTSC 259

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	McConell v ACT
Citation:	[2020] ACTSC 259
Hearing Date:	24 September 2020
DecisionDate:	29 September 2020
Before:	Mossop J
Decision:	See [25]
Catchwords:	PUBLIC LAW – ENROLMENT OF ELECTORS – Statutory interpretation – plaintiff seeking declaration that he is qualified to vote in the ACT general election and is entitled to be enrolled on the ACT electoral roll – whether persons resident of the Jervis Bay Territory are entitled to vote in ACT elections – ACT electoral laws require person’s address to be in the electorate – boundaries of the electorates only encompass the ACT – application for declarations is dismissed
Legislation Cited:	Australian Capital Territory (Electoral) Act 1988 (Cth), ss 6, 9 Australian Capital Territory Electoral Legislation Amendment Act 1994 (Cth) Australian Capital Territory (Self-Government) Act 1988 (Cth), Pt VIII, ss 67B, 67C Australian Capital Territory Self-Government Legislation Amendment Act 1992 (Cth) Commonwealth Electoral Act 1918 (Cth), ss 4, 56AA, 100 Electoral Act 1992 (ACT), ss 34, 35, 72, 73, 74, 128, Dictionary Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A Proportional Representation (Hare-Clark) Entrenchment Act 1994 (ACT) Electoral (Redistribution of electorates for the ACT Legislative Assembly) Determination 2019
Cases Cited:	Wreck Bay Aboriginal Community Council v Williams [2017] ACTCA 46; 12 ACTLR 207
Parties:	Daniel McConell (Plaintiff) Australian Capital Territory (First Defendant) Commonwealth of Australia (Second Defendant)
Representation:	Counsel Self-represented (Plaintiff) V Griffin (First Defendant) J Knowles (Second Defendant)
Solicitors Self-represented (Plaintiff) ACT Government Solicitor (First Defendant) Australian Government Solicitor (Second Defendant)
File Number:	SC 332 of 2020

MOSSOP J:

Introduction

The plaintiff is a resident of the Jervis Bay Territory (JBT). He is on the Commonwealth electoral roll. He wants to vote in the 2020 ACT general election. He has sought declarations that he is qualified to vote in that election and entitled to be enrolled on the ACT electoral roll. His originating application also included other claims for relief, but I ordered that his claims for declarations be dealt with separately.

For the reasons that follow, he is not qualified to vote in that election and not entitled to be enrolled on the ACT electoral roll. As a consequence, his claim for declarations must be dismissed.

Background

Following self-government, the first and second elections for the ACT Legislative Assembly were carried out in accordance with the Australian Capital Territory (Electoral) Act 1988 (Cth). That Act expressly excluded persons living in the JBT from the electoral roll used for the purposes of ACT elections: s 9(2)(a). It also made clear that, for the purposes of that Act, the Division under the Commonwealth Electoral Act 1918 (Cth) that included the JBT was to be taken as not including that territory: s 6.

In 1992, Pt VIII of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self‑Government Act) was amended by the Australian Capital Territory Self‑Government Legislation Amendment Act 1992 (Cth) so as to require the ACT to enact its own electoral legislation.

Following the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] ACTSC 259
Decision Date: 29 September 2020

CaseChat Overview and Summary

The case of McConell v ACT involved the plaintiff seeking a declaration that he was qualified to vote in the Australian Capital Territory's general election and was entitled to be enrolled on the ACT electoral roll. The plaintiff resided in the Jervis Bay Territory, which is a federal territory outside the ACT. The court had to determine whether persons who are residents of the Jervis Bay Territory are entitled to vote in ACT elections. The crux of the dispute lay in the interpretation of ACT electoral laws, which stipulate that a person must have an address within the electorate to be eligible to vote. The plaintiff argued that despite his residency outside the ACT, he should be eligible to vote given certain constitutional provisions and the nature of his connection to the ACT.

The legal issues before the court centred on the interpretation of the ACT electoral laws, specifically the requirement that an elector's address must be within the electorate. The court was tasked with determining the boundaries of the electorates and whether these boundaries included the Jervis Bay Territory. Additionally, the court needed to consider the implications of constitutional provisions and the extent to which they might influence the eligibility of residents of the Jervis Bay Territory to vote in ACT elections.

The court found that the ACT electoral laws explicitly required a person’s address to be within the ACT to be eligible to vote. The boundaries of the electorates were strictly confined to the ACT, and there was no provision or interpretation that extended these boundaries to include the Jervis Bay Territory. The court held that the plaintiff, despite his connection to the ACT, did not meet the statutory requirement of having an address within the electorate. Consequently, the application for declarations was dismissed, as the plaintiff was not qualified to vote in the ACT general election under the current electoral laws. The court's decision was grounded in a strict interpretation of the statutory requirements and the boundaries as defined by the ACT electoral laws.

Orders

Orders of the court

See [25]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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