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Supreme Court of the Australian Capital Territory SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: McConell v ACT Citation: [2020] ACTSC 259 Hearing Date: 24 September 2020 Decision Date: 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 1. 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. 2. 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 3. 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. 4. 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. 5. Following the enactment of the Electoral Act 1992 (ACT), the Australian Capital Territory (Electoral) Act was repealed by the Australian Capital Territory Electoral Legislation Amendment Act 1994 (Cth). The preamble to the Electoral Act indicates the process by which the Hare-Clark voting system, incorporating the Robson Rotation system, was adopted. That voting system was entrenched by the Proportional Representation (Hare-Clark) Entrenchment Act 1994 (ACT). Australian Capital Territory (Self-Government) Act 1988 (Cth) 6. Relevant to the present circumstances are the provisions of the Self-Government Act which relate to the mandated content of the ACT’s electoral laws and the qualifications of electors. Sections 67B and 67C of the Self-Government Act currently provide: 67B Electoral enactment An electoral enactment is to provide, among other things: (a) for the times of general elections; and (b) for a Roll of the electors of the Territory for the purposes of general elections; and 2 (c) that every person who is entitled to be enrolled on that Roll and who is resident in the Territory is required to claim enrolment; and (d) if the electoral enactment provides for the distribution of the Territory into electorates—that a redistribution of the Territory into electorates is to commence not later than 6 years after the previous distribution or redistribution. 67C Qualifications of electors (1) At a general election held on a particular day, a person is entitled to vote if: (a) on that day, the person’s name is on the Roll of the electors of the Territory for the purposes of general elections; and (b) the person would be entitled to vote at an election held on that day to choose a member of the House of Representatives for the Territory. (2) A person’s name is taken not to be on the Roll for the purposes of paragraph (1)(a) if an electoral enactment so provides. (3) This section does not prevent an electoral enactment from providing that other persons, in addition to persons entitled under subsection (1), be entitled to vote at a general election. 7. The “Roll” referred to in s 67C(1)(a) is the Roll required to be kept by reason of s 67B(b). 8. In relation to a resident of the JBT, the requirement in s 67C(1)(b) would be satisfied by reason of the inclusion of the JBT in one of the electoral divisions under the Commonwealth Electoral Act that covers the ACT: Commonwealth Electoral Act ss 4 (definition of “Australian Capital Territory”), 56AA. 9. Whether or not the plaintiff can satisfy the requirement of s 67C(1)(a), and hence be entitled to vote, therefore depends upon whether his name is on the Roll of the electors of the Territory provided for in the enactment passed pursuant to s 67B, being the Electoral Act. Similarly, if he is entitled to vote by reason of s 67C(3) it is by reason of the terms of the Electoral Act. Electoral Act 1992 (ACT) 10. Subject to the terms of the Self-Government Act, the entitlement to be enrolled to vote is to be determined in accordance with s 72 of the Electoral Act which is as follows: 72 Entitlement (1) A person is entitled to be enrolled for an electorate if— (a) the person is entitled to be enrolled on the Commonwealth roll otherwise than under the Commonwealth Electoral Act, section 100; and (b) the person’s address is in the electorate. (2) A person is also entitled to be enrolled for an electorate if— (a) the person is not entitled to be enrolled on the Commonwealth roll only because the person is serving a sentence of imprisonment; and (b) the person’s address is in the electorate. (3) A person is not entitled to be enrolled for more than 1 electorate. 11. Section 72 provides an entitlement to enrolment in “an electorate”. Section 72(1) requires two things. The first requirement is that the person is “entitled to be enrolled on 3 the Commonwealth roll” other than under s 100 (which relates to early applications for enrolment by people over the age of 16). It is uncontroversial that this requirement is satisfied. The second requirement is that the person’s address is in “the electorate”. 12. The concept of “an address” is defined in the Dictionary to the Act as meaning, relevantly: the person’s principal place of residence (including a place of residence from which a person who is an elector is temporarily absent and to which the person intends to return to live in); 13. The term “electorate” referred to in s 72 is also defined in the Dictionary: electorate means an electorate, the name and boundaries of which are specified in a determination in force under section 35. 14. The effect of s 72 is that in order to be entitled to be enrolled in an electorate it is necessary that the person’s address, in the defined sense, be within the electorate. 15. The Electoral Act provides for the establishment and definition of electorates. Sections 34 and 35 provide as follows: 34 Multimember electorates (1) The ACT must be divided into 5 electorates. (2) Five members of the Legislative Assembly must be elected from each electorate. 35 Redistribution of electorates (1) Subject to this part, the augmented commission shall redistribute electorates by determining— (a) the name and boundaries of each electorate; and (b) the number of members of the Legislative Assembly to be elected from each electorate. (2) A determination may be made only after any investigation under section 52 (Objections to augmented electoral commission’s proposal) is finished. (3) A determination is a notifiable instrument. Note A notifiable instrument must be notified under the Legislation Act 2001. 16. Notifiable instrument NI2019–449 is the Electoral (Redistribution of electorates for the ACT Legislative Assembly) Determination 2019. It is currently in effect. The determination identifies that the boundaries of the electorates for the Legislative Assembly are as shown on a map included within the instrument. That map only includes areas in the ACT and does not include any area within the JBT. As a consequence, no address in the JBT is within an “electorate” for the purposes of the Electoral Act. This means that a person whose address is in the JBT cannot satisfy the requirement in s 72(1)(b) of the Act, so as to be entitled to be enrolled for any electorate established under the Act. 17. Section 74 of the Electoral Act, which relates to certain overseas electors who intend to reside or resume residing in the ACT, has no application to the plaintiff.
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