Zwickler and Australian Electoral Commission

[2001] AATA 929

DECISION AND REASONS FOR DECISION [2001] AATA 929

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/659

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      BARBARA ZWICKLER    
  Applicant
           And    AUSTRALIAN ELECTORAL COMMISSION   
  Respondent

DECISION

Tribunal       MS N Bell, Member            

Date9 October 2001 

PlaceSydney

Decision      The decision under review is affirmed. 
   [SGD] N Bell
  Member
CATCHWORDS
General Administrative Appeal – electoral enrolment – application for enrolment from outside Australia
Commonwealth Electoral Act 1918 – section 94A(1)

REASONS FOR DECISION

Ms N Bell, Member               

1. This is an application by Ms Barbara Zwickler ("the Applicant") for review of a decision of the Australian Electoral Officer for New South Wales ("the Respondent") dated 2 May 2001 to reject her application for electoral enrolment from outside Australia. The hearing of the Applicant's application was conducted by telephone, with the Applicant currently residing in Austria. The Applicant represented herself, and the Australian Electoral Commission was represented by Ms Dale Watson of the Australian Government Solicitors Office. The Applicant gave evidence to the Tribunal and the Tribunal had before it as evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

2. The Applicant told the Tribunal that, although she appreciates that the Respondent was simply applying the relevant law in the making of its decision, she was concerned that she was never notified of her rights in relation to voting before she left Australia.  She said that it was only after she left Australia that it became apparent to her what her voting entitlement was.

3. The Applicant told the Tribunal that she went overseas in order to look after her husband, who had been involved in a motor vehicle accident.  She said that she and her husband had gone to Austria initially on a temporary basis, but that, as time goes on, it is becoming apparent to her that if her husband is diagnosed with Parkinson's disease, they will remain in Austria for much longer than they had originally intended.

4. The Applicant was at pains to point out that she did not wish to quarrel with the Respondent but considered that the civic duty of voting is of great importance, given that the franchise is a hard won right, and that she feels great disappointment that the Respondent is not prepared to be at all flexible by at least granting the Applicant a temporary postal vote.

5. The Applicant also expressed her concern that she had gone through an elaborate appeal process and had not to date been successful in having the decision set aside.

6. Ms Watson for the Respondent submitted that the Respondent is bound by the provisions of the Commonwealth Electoral Act 1918 ("the Act"), section 94A(1) of which provides:

   "Enrolment from outside Australia
   (1) A person may apply to the Australian Electoral Officer for a State for enrolment for a Subdivision in that State if, at the time of making the application:

   (a) the person has ceased to reside in Australia for reasons relating to the person's career or employment or for reasons relating to the career or employment of the person's spouse; and
   (b) the person is not enrolled; and
   (c) the person is not qualified for enrolment, but would be so qualified if he or she resided in a Subdivision of a Division, and had done so for at least a month; and
   (d) the person intends to resume residing in Australia not later than 6 years after he or she ceased to reside in Australia."

7. Ms Watson submitted that the Applicant, having gone overseas for reasons not related to her career or employment or that of her husband has not satisfied the requirement in section 94A(1)(a) and for that reason cannot be granted electoral enrolment from outside Australia. Ms Watson expressed the Respondent's sympathy for the position of the Applicant but noted that there is no discretion in the legislation to waive the requirement outlined above.
   consideration

8. The Tribunal is most sympathetic with the Applicant's desire to exercise her franchise and admires her determination to do so. However, it must accept as correct the submission of the Respondent that the effect of section 94A(1)(a) is to prevent the Applicant from being enrolled from outside Australia.

9. It is not in dispute that the Applicant currently resides in Austria, that she applied from Austria for registration as an overseas elector and that her reason for ceasing to reside in Australia is to care for her husband who suffers ill health.

10. On this basis, and not withstanding the Applicant's admirable sense of civic duty, the Tribunal must affirm as correct the decision under review.
    determination

11. The Tribunal affirms the decision under review.

    I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

    Signed: R Quinn     .....................................................................................
      Associate

    Date/s of Hearing  16 October 2001
    Date of Decision  9 November 2001
    Counsel for the Applicant        self-represented
    Solicitor for the Respondent    Ms Dale Watson