Dent v Australian Electoral Commission

REASONS FOR JUDGMENT 1 On 19 June 2008, the Court delivered judgment on (a) an appeal from the orders of the Court made on 14 December 2007; (b) an application for an extension of time within which to appeal from the costs order made by the Court of 1 November 2007; and (c) an application for an extension of time within which to appeal from the decision of the Administrative Appeals Tribunal (AAT) made on 23 November 2007. The appeal and the application for an extension of time to appeal from the costs order were respectively dismissed and refused. An extension of time within which leave to appeal from the AAT decision was granted, and leave to appeal from that decision was also granted: see Dent v Australian Electoral Commissioner [2008] FCAFC 111. 2 The issue which remained alive in relation to the AAT decision is whether the AAT erred in law in deciding that Mr Dent, having been entered on the electoral Roll in the name Albert Langer under s 96 of the Commonwealth Electoral Act 1981 (Cth), was ineligible to make a request under s 104 of that Act for his address not to be shown on the Roll. Because the Australian Electoral Commissioner (the AEC) and Mr Wight had not had a full opportunity to address that issue raised by Mr Dent, the Court made orders giving the AEC and Mr Wight leave to make further written submissions in response to Mr Dent's submissions on the issue, and giving Mr Dent leave to make further written submissions in reply, both within specified times. Submissions were duly received on behalf of the AEC and Mr Wight. Mr Dent has not made submissions in reply within the time permitted, although we have had the benefit of his principal submissions. 3 This judgment deals with that remaining issue. 4 The remaining issue arose in the period leading up to the general election for the House of Representatives and for the Senate held on 24 November 2007. Mr Dent was not registered on the electoral Roll. On 16 October 2007, he applied to be registered on the electoral Roll under the name Arthur Dent. His application was under s 96 of the Commonwealth Electoral Act 1918 (Cth) (the Act), as he said he did not reside in any Subdivision, and so fell within the description of an itinerant elector. Ultimately, the AAT decided that he should not be entered on the Roll under that name, but under the name Albert Langer. 5 At the same time, Mr Dent applied to be recorded as a "silent elector" under s 104 of the Act, so that his address would not be shown on the Roll. The AAT refused his request under s 104 of the Act. In its reasons for decision on that topic, it said: Mr Dent made his application for enrolment under s 96 as a person who does not reside in any Subdivision. I accept his statements that he is homeless or, at least, that he has no fixed address. His evidence of homelessness is entirely at odds with the request under s 104. Such a request accompanies a claim for enrolment where "… having his or her address shown on the Roll for a Subdivision would place the personal safety or of members of the person's family at risk …". Mr Dent has, on his own evidence, no address and is not making a claim for enrolment; rather he is making an application for enrolment. He is not entitled to make a request and so I do not need to consider the matter under s 104. 6 In our earlier reasons, we considered at [37]-[47] the contentions advanced by Mr Dent on the issue of whether, having been enrolled on the Roll in the name Albert Langer under s 96 of the Act, Mr Dent was eligible to make a request under s 104 of the Act for his address not to be shown on the Roll. We shall not repeat that part of those reasons. We considered that one matter advanced by Mr Dent on that question was arguable. So we decided to seek full submissions on it. In short, the issue was arguable because, upon the cancellation of an annotation on the Roll that a person is an itinerant elector by reason of s 96(2B), the contact address provided on the application form or an earlier residential address might then be entered on the Roll. It seemed arguable that status as an itinerant elector is not necessarily coterminous with that person's enrolment. Hence, Mr Dent's application under s 104 might have some ongoing relevance, and a person in his position might therefore be eligible to apply under s 104 to be a silent elector, even if registered initially as an itinerant elector. 7 As we observed at [43] of our earlier reasons, the statutory scheme relating to itinerant electors makes it clear that no address of such an elector would appear on the Roll. The itinerant elector, by reason of s 96A, must be allocated to a particular Subdivision and in the first instance that will be the Subdivision in which the elector last had an entitlement to vote. It does not follow that, if the elector previously had an entitlement to vote in a Subdivision by reason of having been resident at a particular address within that Subdivision, the previous address would be the address of the itinerant elector or would be included as the address of the itinerant elector on the Roll. 8 Nor does the possibility of an itinerant elector ceasing to be qualified as an itinerant elector under s 96 lead to inclusion on the Roll of any previous address of the elector, or any address to which correspondence to the itinerant elector may be sent. Eligibility to be treated as an itinerant elector ceases if that person "resides" in one place for more than a month: s 96(8). Then the annotation on the Roll under s 96(2B) is cancelled: s 96(10). Section 96(12) provides that an itinerant elector will be taken to reside in a place only if that person has a "real place of living" at that place. The term "real place of living" means a place where that person has a fixed intention of returning for the purpose of continuing to live there: s 4 of the Act. In that event, in addition to the cancellation of the annotations 96(2B), s 101(1) or s 101(5) obliges that person to claim enrolment or a transfer of enrolment depending on whether the place of residence is in the same or a different Subdivision. Section 102(1)(b) then leads to the name of the person and the other particulars required by s 83 (including the address) being entered on the Roll. 9 An itinerant elector may have a former place of residence, or an address for the receipt of correspondence. However, there is no basis upon which either of those addresses would appear on the Roll as the address of that person if eligibility to be an itinerant elector comes to an end. The attribution of an address to that person only arises from the procedure undertaken under s 101. At that time, if the elector does not wish the then current place of residence to be recorded on the Roll, a request under s 104 may be made. 10 Consequently, although status as an itinerant elector and as an elector may not be coterminous, it does not follow (as Mr Dent argued) that an earlier address provided to the AEC would be recorded on the Roll. There is therefore no need for s 104 to be available to an itinerant elector. The scheme of the Act makes its protection available to all electors with a place of residence, including a former itinerant elector who has complied with s 101 to ensure continued status as an elector on the Roll. 11 We are therefore of the view that the decision of the AAT on that question is correct. Accordingly, the appeal from the AAT's decision made on 23 November 2007, limited to the issue identified, is dismissed. 12 As Mr Dent has failed on both his applications and his appeals, in our view he should be ordered to pay the costs of the appeal from the orders of the Court made on 14 December 2007, the costs of the application for an extension of time within which to appeal from the costs order of the Court made on 1 November 2007, and the costs of the application for an extension of time within which to appeal from the decision of the AAT made on 23 November 2007, and the costs of that appeal.