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Australian Electoral Commission
File reference: Reg3734
The decision of the delegate of the Australian Electoral Commission (AEC) to deregister The Fishing Party for failing to respond to a Notice of Intention to Deregister issued under s137(1)(d) of the Commonwealth Electoral Act 1918 was affirmed at a meeting of the three persons who comprise the Commission on 28 May 2010.
Section 138A(1) of the Commonwealth Electoral Act 1918 (Electoral Act) confers upon the Australian Electoral Commission (AEC) the power to review the eligibility of registered political parties to remain on the Register. Section 138A(3) provides that the AEC may conduct such a review by giving written notice to the registered officer of a political party requesting specified information. Section 138A(4) of the Electoral Act stipulates that the information specified in the Notice must be provided within the timeframe given in the Notice. A minimum of 2 months must be allowed to furnish the information to the AEC.
The AEC commenced its cyclic review of the eligibility of non-Parliamentary parties to remain on the Register under the provisions of s138A of the Electoral Act on 19 August 2009. A total of 19 notices of review were issued and ten responses were received by the deadline stated.
The Notice of Review for The Fishing Party was issued to Mr Robert Arthur Smith in his capacity as the Registered Officer of the Party on 28 October 2009. The address given on the Notice of Review was as per details on the Register and remains the current address for the party. No response was received from The Fishing Party by the due date stated on the Notice of Review of 29 January 2010.
The AEC then being satisfied pursuant to s137(1)(cb) that The Fishing Party had failed to comply with the notice under s138A, it issued a Notice of Intention to Deregister under s137(1)(d) on 2 February 2010. No response from The Fishing Party under s137(2) setting out reasons why it should not be deregistered was received by 2 March 2010, being the expiry of the period of one month from the giving of the Notice of Intention to Deregister.
Section 137(4) provides that where no response is received to a Notice of Intention to Deregister issued under s137(1)(d), the AEC shall deregister the party. Accordingly, The Fishing Party was deregistered and removed from the Register of Political Parties on 16 March 2010.
Mr Smith was informed in the letter sent by the AEC delegate on 16 March 2010 advising him of the deregistration of The Fishing Party, that he had a right of review of the decision to deregister the party. The AEC has since re-examined the wording of s141(2) and identified that decisions to deregister a party under s137(4) do not, in fact, give rise to a right of internal review under s141 of the Electoral Act. This is because deregistration under s137(4) is confined to the case where no statement has been lodged under s 137(2). Where a statement has been lodged and the AEC has considered it and decided that the party should be deregistered, that deregistration takes place under s137(6). The definition of "reviewable decision" under s141 includes deregistration under s137(6) but not under s137(4).
However, under the Administrative Decisions Judicial Review Act 1977 Mr Smith may take the case straight to the Federal Court. In addition, there is nothing in the Electoral Act actively preventing an internal review of a decision to deregister a party under s137(4). Thus, the decision to deregister The Fishing Party was reviewed by the full Commission, despite the absence of an explicit right of review in the Electoral Act.
The application for review submitted by Mr Smith, the Registered Officer of the Fishing Party was received by the AEC on 22 March 2010. Mr Smith makes the application in his capacity as the Registered Officer and as a person affected by the decision who is dissatisfied with the decision.
| Commencement date of s138A Review | 19/08/2009 |
| Date of Notice of Review issued to The Fishing Party | 28/10/2009 |
| Deadline set for response to the Notice of Review | 29/01/2010 |
| Notice of Intention to Deregister issued to The Fishing Party | 02/02/2010 |
| Deadline set for response from The Fishing Party in the Notice of Intention to Deregister | 02/03/2010 |
| Date of deregistration of The Fishing Party | 16/03/2010 |
| Letter dated 15 March from Mr Smith stating he had just received Notice of Intention to deregister the Party received | 19/03/2010 |
| Affidavit signed by Mr Smith on 16 March 2010 received | 19/03/2010 |
| Application by Mr Smith for Review of Delegate's decision received | 22/03/2010 |
The Fishing Party was issued with a Notice of Review under s138A(3) and Notice of Intention to Deregister issued under s137(1)(d) of the Electoral Act respectively. Notification of the delegate's intention to deregister The Fishing Party was also published in the Commonwealth of Australia Gazette No. GN 5, on 10 February 2010 under the provisions of s137(1)(e) of the Electoral Act.
The delegate of the AEC has discretionary powers to extend the deadline for parties to respond to Notices issued under s138A(3). However s137(4) provides that where a registered officer of a political a political party has failed to respond to a Notice of Intention to Deregister issued under s137(d), the AEC "shall deregister the party" (emphasis added). The Electoral Act leaves no room for discretion in cases of non-response.
The AEC issues s138A(3) notices by ordinary post addressed to the registered officer of a party at the address of the party maintained on the Register of Political Parties. Both of the Notices were posted to Mr Smith to the address recorded in the Register of Political Parties.
Section 29 of the Acts Interpretation Act 1901 provides that:
Section 138A(3) provides that a review of eligibility may be carried out by the Commission 'giving' written notice to the registered officer of the party. According to s29 of the Acts Interpretation Act, given that the letter was properly addressed, prepaid and posted, the AEC met its obligation in relation to sending the Notice of Review at the time at which the notice was posted. The Commission accepted that all AEC obligations had been met in relation to the dispatch of the Notice of Review.
Although the deadline to respond to the Notice of Intention to Deregister was 2 March 2010, The Fishing Party was not deregistered until 16 March 2010.
In a letter dated 15 March 2010 Mr Smith claimed that he did not receive the Notice of Review and neither did his two party officials. He further stated that there was no mention of the review on the AEC website.
Mr Smith claims in an affidavit submitted to the AEC on 19 March 2010 that he did not receive the Notice of Review issued to him by the AEC on 28 October 2009.
Mr Smith stated that he had received notification of election funding payments for Bradfield and Higgins by-elections, requests for updates of party records and application for postal votes at his address.
In the same letter dated 15 March 2010, Mr Smith claimed that he had 'just received' the Notice of Intention to Deregister The Fishing Party issued to him in February 2010 and acknowledged that the deadline for a response to the Notice of Intention to Deregister set by the AEC had passed.
On 10 May 2010, the AEC sent correspondence to Mr Smith requesting further information as to his alleged delay in receiving and responding to the Notice of Intention to Deregister issued to The Fishing Party on 2 February 2010. The letter was sent via registered post and was also sent by email as a scanned attachment.
Mr Smith responded to the letter on Thursday 13 May 2010 via a letter attached to an email. The letter stated the following:
In relation to Mr Smith's delay in receiving the Notice of Intention to Deregister issued on 2 February 2010, he stated the following:
The Commission found that the delegate of the AEC followed all the provisions specified in s137 of the Electoral Act noted below before reaching the decision to deregister The Fishing Party and removing its name from the Register of Political Parties. The delegate:
Consequently, when no response was received to the Notice of Intention to Deregister the Party the delegate of the AEC exercised the specific and mandatory power vested in the AEC under s137(4) of the Electoral Act to deregister The Fishing Party.
The Commission also noted that the scheme contained in the Electoral Act places an obligation and duty on the 'registered officer' to promptly deal with correspondence and other matters on behalf of a registered political party such as The Fishing Party. Even if the Commission were to accept that Mr Smith as the registered officer had not received the Notice of Review in October 2009, he did receive the Notice of Intention to Deregister and apparently failed to promptly contact the AEC to respond. The Commission formed the opinion that the AEC is not responsible for the apparent administrative deficiencies by the registered officer. The evidence available to the AEC was that all notices had been correctly addressed to the registered officer and that there was no logical explanation provided by Mr Smith as to why he had not received them.
The delegate's decision to deregister The Fishing Party was affirmed.
28 May 2010
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