Teed and Australian Electoral Commission

[2004] AATA 1307

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1307

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1175

GENERAL ADMINISTRATIVE  DIVISION

Re:         ROSEMARY TEED

Applicant

And:AUSTRALIAN ELECTORAL COMMISSION

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             8 December 2004

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) Regina Perton
  Member

ELECTORAL – enrolment on Commonwealth electoral roll – whether British citizen  permanently resident in Australia eligible for enrolment – on electoral roll before and after but not on 25 January 1984 – cause for not being on roll irrelevant – no discretion to permit enrolment – decision affirmed

Commonwealth Electoral Act 1918 s 93

REASONS FOR DECISION

8 December 2004  Regina Perton, Member

1.      This is an application by Rosemary Teed (the applicant) for review of a decision of the Australian Electoral Commission (AEC) dated 22 September 2003 rejecting her application for electoral enrolment.  The Australian Electoral Officer for Victoria affirmed a decision of the Acting Divisional Returning Officer for Hotham dated 24 June 2003, that Ms Teed was not entitled to enrolment pursuant to the Commonwealth Electoral Act 1918 (the Act), as she was neither an Australian citizen nor an eligible British subject at the relevant time.

2.      At the hearing on 29 November 2004 Ms Teed represented herself and Mr T. Glanville represented the AEC. 

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T21).   

BACKGROUND

4.      Ms Teed was born in England on 14 July 1956 and is a British citizen.  Her father, an Australian citizen, and her mother, then a British citizen, moved to Australia when Ms Teed was a young child. 

5.      In accordance with s 39 of the Act, as it was in 1973, British subjects were entitled to enrol to vote when they reached 18 years.  Ms Teed enrolled to vote in 1974, at the age of 18, and voted in subsequent elections.  She changed her address after her enrolment and notified the AEC of that change.  On 25 February 1982, Ms Teed was enrolled at an address in South Yarra.  In late 1982, the AEC undertook an electoral roll review in the electorate where Ms Teed was registered.  Ms Teed was found to be no longer living at the address in South Yarra. As a result, the AEC removed her from the roll on 22 April 1983. 

6.      The Statute Law (Miscellaneous Amendments) Act 1981, which came into force on 26 January 1984, amended the provisions relating to eligibility for enrolment to vote.  From that date persons who had attained 18 years of age required Australian citizenship for eligibility to enrol to vote.  British subjects who had been on the electoral roll immediately before 26 January 1984 i.e. on 25 January 1984, were entitled to enrolment. 

7.      On 3 September 1988, Ms Teed was enrolled to vote at an address in Brunswick West.  Her enrolment form indicated that she had moved back to Victoria from Western Australia.  Ms Teed subsequently notified the AEC of several changes of address and remained on the electoral roll until she advised the AEC on 10 October 2002 that she had moved to a particular address in Bentleigh East.  After receipt of her application for a change of enrolment, the AEC undertook checks of her eligibility to enrol.  The AEC’s enquiries yielded the information that Ms Teed was not an Australian citizen and that she had not been on the electoral roll on 25 January 1984. 

8.      On 24 June 2003, the Acting Divisional Returning Officer for Hotham wrote to Ms Teed advising her that her name had been removed from the electoral roll as she was not an Australian citizen or a British subject who had been on a Commonwealth electoral roll on 25 January 1984.

9.      On 23 July 2003, Ms Teed sought review of the decision to refuse her application for enrolment.  She maintained that she was on the roll on the key date and had voted in all elections since she was eighteen and that she had advised the AEC of her addresses around that time.  The AEC undertook further investigations, but was unable to locate any record of Ms Teed’s enrolment on 25 January 1984.  

10.     On 22 September 2003, the review officer, namely the Australian Electoral Officer for Victoria, affirmed the decision to refuse Ms Teed’s application for enrolment.  Ms Teed lodged an application with this Tribunal on 22 October 2003.

11.     The issue before the Tribunal is whether Ms Teed is entitled to be on the electoral roll.

EVIDENCE

12.     Ms Teed told the Tribunal that she had voted in every election since first enrolling at the age of 18.  She stated that she had always informed the AEC of changes of address, including her move from South Yarra to her next address.  She stated that she took her responsibilities as a voter seriously and had always attended at a polling booth to vote in federal, state and local council elections.  She said that she missed one local council election and was distressed at doing so.

13.     Ms Teed said that her father has been an Australian citizen since birth.  Her mother was a British citizen who took up Australian citizenship four or five years ago.  Ms Teed stated that the family moved to Australia from England when she was three years old.  Ms Teed stated that she first enrolled to vote when she was 18 years old.  At that time, she lived with her parents in Mount Waverley.  Ms Teed stated that she then changed addresses and enrolment to an Oakleigh South address; and subsequently to the South Yarra address at which she was enrolled in 1982. 

14.     Ms Teed said that she moved to Box Hill in early 1983.  She had also lived in Doncaster for a short period around that time.  Ms Teed stated that she married in August 1983 and lived with her then husband at the Box Hill address.  She indicated that she informed the relevant authorities of her  married surname of Charles.  Ms Teed recalled obtaining a new driver’s licence and a Medicare card in her married name.  Ms Teed was adamant that she had also changed her electoral enrolment to the Box Hill address.  She stated that she reverted to her maiden name at around the time of her divorce in 1996.

15.     In April 1997, Ms Teed moved to Western Australia for a year and stayed with her parents who had moved there from Victoria.  Ms Teed stated that it was her belief that she had enrolled to vote in Western Australia.  She returned to Victoria in early 1998 and applied, and was accepted, for enrolment in Brunswick West.  She subsequently moved to addresses in Essendon, Pascoe Vale South, Bentleigh, Brighton East, and then to the address in Bentleigh East for which she sought and was refused enrolment in October 2002.

16.     Ms Teed told the Tribunal about the difficulties she had experienced in obtaining corroborating documentary evidence so long after her removal from the roll in 1983, but maintained that she had filled out the relevant documentation following her various changes of address.  She stated that she was sure that she should have been on the electoral roll on 25 January 1984, given her fastidiousness in relation to voting and in informing all relevant authorities of her changes of address and name.

17.     The documents provided by the AEC show that it conducted searches of electoral rolls during the 1980s of electorates in Victoria and Western Australia, under Ms Teed’s maiden and married surnames.  An extract from a timeline prepared by an AEC officer (T15) illustrates some of those inquiries:

·10 Oct 2002 – enrolment form received – check of microfiche in office – not found – phone enquiry re citizenship.

·16 Oct 2002 – Fax information given to other divisions to check their microfiche and rolls re-british subject status i.e. – on roll at 25/1/1984

·17 Oct 2002 – Not found on other divisions rolls

·17 Oct 2002 – Information sent to Canberra for DIMIA citizenship check – father and mother both Australian citizens – Rosemary born overseas – returned to Australia as infant claimed to be eligible for an Australian passport

·6 Nov 2002 – Enrolment form processed for State close of rolls

·25 Feb 2003 – response from Canberra – failed to locate any details – requested more information

·29 April 2003 – response from Canberra – failed to find any registration of her name

·May 2003 – letter to Rosemary Teed advising result of searches and requesting more information for british subject status

·Late May to Mid June 2003 – more phone enquiries and enrolment searches with other Divisions in regard to further information – married name Charles and further addresses supplied

·Found Chisholm deletions fiche 22/1/1982 – objection from …Oakleigh South

·24 June 2003 advised Rosemary that we could not substantiate her entitlement to remain on roll – objection letter sent

…

18.     A minute prepared on 16 September 2003 by an AEC official (T17) provides further information on the AEC’s investigation of Ms Teed’s application for enrolment dated 10 October 2002:

·Ms Teed may have voted but this does not mean that she was on the roll.  If the elector lodged an absent vote then no check of the roll would have been made at the time of voting.  If the elector tried to cast an ordinary vote and no record was found they could have cast the equivalent of a provisional vote (known as a section vote) although the practice at that time (1983/84) was to openly discourage this.  No relationship existed between a rejected vote, a likely scenario, and a person’s enrolment.

·The action of removing her from the roll on 22/4/1983 for an address in South Yarra appears to have been a correct one given her advice that she lived in Doncaster or Box Hill North at the time of the March 1983 election.

·WA was requested to check their roll for the years 1982, 1983 and 1984 and they advised that no record was found…

CONSIDERATION OF THE ISSUES

19.     Section 93 of the Act sets out who is entitled to enrol to vote in Australia as follows:

93  Persons entitled to enrolment and to vote

(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.

…

20.     The AEC has been unable to locate any record of enrolment by Ms Teed as at 25 January 1984, the day immediately before 26 January 1984, despite a concerted effort to do so.  Ms Teed has also not been able to find any documentary evidence of her enrolment as of 25 January 2004. 

21.     The Tribunal notes that Ms Teed is a principled and conscientious person who wishes to partake in the democratic process.  She has lived in Australia for almost all her life and enrolled to vote when she turned 18, as she was entitled to do at that time as a British subject.  Ms Teed’s enrolment was cancelled by the AEC on 22 April 1983, some nine months before the crucial date of 25 January 1984.  Ms Teed agreed that she did not live in South Yarra in April 2003.  The Tribunal is therefore satisfied that she was not entitled to be enrolled for that address on 22 April 1983.  The Tribunal accepts that Ms Teed holds a genuine belief that she advised the AEC of her move from South Yarra to Doncaster and/or Box Hill.  Unfortunately, there is no AEC record of any enrolment for the relevant electorates for either the Box Hill or Doncaster address or for any address as at 25 January 1984.  Ms Teed, not unexpectedly, does not have copies of any documentation she may have filled out or sent. 

22.     There is documentary evidence showing that when Ms Teed returned from Western Australia in 1988, she enrolled to vote while residing in Brunswick West.  However, given that she moved interstate more than two years after the crucial date of 25 January 1984, it is immaterial to this case whether she was enrolled in Western Australia while living there.  The AEC has conceded that Ms Teed should not have been enrolled on her return to Melbourne or subsequently.  The AEC indicated that during the 1980s they did not undertake the rigorous checking of re‑enrolments or ask the prompt questions that are now on the enrolment forms.  Unfortunately for Ms Teed, the AEC’s error in allowing her to be on the electoral roll between 1988 and 2002 does not entitle her to continue to be on the roll and to vote.  

23.     The Act is clear that a British subject, who is not an Australian citizen, was required to be on the electoral roll on 25 January 1984 to maintain a present right to enrol and vote.  There is no discretion for the AEC or the Tribunal to overlook that requirement.  Hence, the Tribunal has no alternative but to affirm the decision under review.  

DECISION

24.     The Tribunal affirms the decision under review. 

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  29 November 2004

Date of decision:  8 December 2004
Applicant:  Self‑represented
Representative of respondent:     Mr T. Glanville, Australian Electoral Commission