File reference: 10/646, Reg4289
The decision of the delegate of the Australian Electoral Commission (the Commission) to refuse the application from the Pirate Party Australia for federal registration as a political party was reviewed on appeal to the Commission. The Commission determined that the delegate's decision to refuse the application from the Pirate Party Australia under the Commonwealth Electoral Act 1918 should be affirmed..
The application for registration from the Pirate Party Australia (the Party) was received in the National Office of the Australian Electoral Commission (AEC) on 21 June 2010.
A delegate of the Commission made a decision on 17 February 2011 to refuse the application for registration from the Party. Correspondence notifying the Party of the delegate's decision was sent on 23 February 2011 to the address that was listed on the application form. Also included with this correspondence were the membership forms that the Party had submitted to support its application. The person who the Party proposed as its registered officer, Mr Serkowski, subsequently advised the AEC that he did not receive this correspondence.
On Friday 11 March 2011, the AEC received an email from Mr Serkowski claiming that he had only learned of the AEC delegate's decision to refuse the application for registration from the AEC's website. Following a discussion with the Registrar of Political Parties regarding possible options that he could pursue, on 6 April 2011 an application for review was received by the Commission.
On 12 May 2011 the AEC received from Australia Post the parcel containing the delegate's decision letter dated 23 February 2011 and the membership forms. Australia Post had marked the parcel "RTS unknown". No other AEC correspondence to the Party has been returned by Australia Post with the addressee as being "RTS unknown".
Mr Serkowski submitted an application to the Commission for review of the delegate's decision to reject the application for federal registration from the Party on 6 April 2011. Mr Serkowski made this application in his capacity as a person affected by the decision who is dissatisfied with the decision as per subsection 141(2) of the Commonwealth Electoral Act 1918 (Electoral Act). Mr Serkowski sought:
In this application for review, Mr Serkowski questioned the validity of the AEC running checks of membership lists against current and historical versions of the electoral Roll to test entitlement to electoral enrolment as required by Part XI of the Electoral Act.
The specific issues raised by Mr Serkowski in his application for review were:
The Commission considered all of the matters raised by Mr Serkowski in his application for review. The Commission noted that while some delays may have occurred, the two main grounds which could be categorised as being of relevance to a merit review of the original decision under the Electoral Act were:
The Commission noted that Part XI of the Electoral Act sets out the criteria for federal registration for a political party. Section 123 defines the term 'eligible political party' to mean a political party that is either a Parliamentary party or has at least 500 members. Subsection 123(3) of the Electoral Act provides that: 'A reference in this Part to a member of a political party is a reference to a person who is both: a member of the political party or a related political party, and, entitled to enrolment under this Act.'
The Commission was aware of the process adopted by the AEC in undertaking evidence-based checks to determine whether or not a party has at least 500 members entitled to enrolment. The primary task is to first match the electronic membership list submitted by a party against the current and historical enrolment records held in the electronic enrolment system provided for under section 111 of the Electoral Act. The result of this matching is a consolidated list of matched electors and members. If this consolidated list has less than 500 matched records, the AEC then undertakes a manual process to re-check the submitted names of the members against the public version of the Roll in case there are slight changes in the details between the submitted list of members and the details on the Commonwealth electoral Roll. This manual process overcomes the situation where people have neglected to update their address or other details, and therefore may be entitled to appear on the electoral Roll. Any members who are matched through this process are then added to the consolidated list of party members. The final matched list of members with the Commonwealth electoral Roll is then imported into the AEC's party registration management system which automatically checks for members under 16 years of age, duplicate entries in the party's list or members duplicated in lists held for already registered parties.
Where this process results in a final list comprising less than 500 members eligible to support an application for federal registration, the AEC contacts the prospective registered officer of the political party and requests that additional members be submitted. The party is also advised that it may exercise the evidential burden of providing evidence of the entitlement to enrolment of those members who the AEC could not match with the details contained in the Commonwealth electoral Roll. In this case the AEC had evidence that the registered officer of the Party had received the letter of 15 October 2010. In that letter the AEC recommended that the information on the membership forms that had previously been lodged with the AEC should be used to verify the enrolment of the members, either by using the AEC website, or by searching the public copy of the electoral roll which is available in all AEC offices.
The Commission also noted that it is not the existing AEC practice to provide prospective registered officers of an applicant political party seeking registration with the details of non-matches with the electoral Roll unless a formal request for the information is made. However, the Commission had been advised by the AEC that it had no record of having received any such request from Mr Serkowski for a list of the names of the Party members who could not be found on the Commonwealth electoral Roll.
The Commission was satisfied that the process undertaken by the AEC is consistent with the requirements of the Electoral Act and with making evidenced-based decisions. This is particularly the case given that the AEC processes merely casts 'doubt' as to whether the legislative eligibility requirement has been met and provides the prospective applicant political party with an opportunity to rectify potential issues and affords natural justice.
The Commission agreed that it was regrettable that there appeared to have been some delay in the AEC's response to some of the correspondence that was sent by Mr Serkowski. However, the Commission did not accept that any delays had resulted in some flaw or error in the decision-making process that was applied to dealing with the application for registration.
The Commission noted Mr Serkowski's allegations that he and the Party did not receive two key items of correspondence. The Commission was aware of the provisions contained in section 28A of the Acts Interpretation Act 1901 which provides that a document is deemed to have been 'served' (or sent, given etc. as the provision states) on a natural person:
The Commission also noted that section 29 of the Acts Interpretation Act 1901 provides that:
Where an Act authorises or requires any document to be served by post, whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The allegations made by Mr Serkowski that he did not receive various items sent by post fall outside the responsibility of the AEC. The AEC can only be responsible for correctly addressing the posted material based on the details provided in the application for registration, paying the amount charged for the delivery and placing it with Australia Post. Section 126 of the Electoral Act makes it clear that it is the responsibility of the applicant to include the relevant address details at which they can be contacted by the AEC. The duties of a party "secretary" are listed in the definition contained in subsection 123(1) of the Electoral Act and include the "responsibility for the carrying out of the administration, and for the conduct of the correspondence, of the party". It can hardly be the responsibility of the AEC if the address details nominated by Mr Serkowski were either compromised due to a lack of security or some other intervening event that precluded the delivery of the postal item.
The Commission noted that even if the correspondence of 21 January 2011 had not been received by Mr Serkowski (in which a reminder about the need for an additional 50 members was sent), he had been previously informed of this issue in the AEC's letter of 15 October 2010 and reminded of it again in the email correspondence on 24 November 2010. There was also evidence that Mr Serkowski had made telephone contact with the AEC in response to the AEC's letter of 15 October 2010, demonstrating that he had received the letter advising him of a shortfall in members who appeared on the Commonwealth electoral Roll thereby questioning any entitlement to electoral enrolment. It appeared that no further response was received from the Party following this correspondence or the telephone call.
Based on the available evidence the Commission concluded that the evidential burden was clearly with Mr Serkowski and the Party and that there had been a failure to take any further steps to address the membership issue by providing any evidence or other material that could have been relied upon by a decision-maker.
The Commission considered that the evidence in the AEC records indicated that the AEC had correctly properly addressed, prepaid and posted each document the Party alleged that it had not received. The correspondence was all sent to the address listed on the application for registration form lodged by Mr Serkowski as the postal address for correspondence to the Party. Accordingly, having regard to the requirements of the Acts Interpretation Act 1901, the AEC had met its lawful obligation in relation to the service of the written notices and other correspondence.
The Commission also formed the view that there is a requirement in section 4 and section 123 of the Electoral Act, that an eligible political party must be an organisation. This means that an eligible party should have an effective structure and communication systems in place, which allow it to promptly respond to correspondence. It does not seem appropriate for the Party to have neither replied to the AEC's letter of 15 October 2010 or the email of 24 November 2010 which had sought a response from the Party on the membership issue.
The Commission decided that the current method applied by the AEC for assessing a claimed member of a political party with the entitlement to enrolment is consistent with the requirements of the Electoral Act. The Commission decided that the evidential burden had been correctly placed on the applicant and for whatever reason, that burden had not been discharged either immediately prior to the decision made by the delegate or subsequently prior to the Commission's consideration of the application for review. There was no evidence before the Commission that the Party had 500 members who were entitled to enrolment under the Act.
Accordingly, the Commission determined that the delegate's decision dated 17 February 2011 to refuse the application for registration of the Pirate Party Australia should be affirmed.
We the undersigned acknowledge and approve the above statement of reasons for the Commission's decision regarding the application for review of the delegate's decision to refuse the application for registration from the Pirate Party Australia.
Mr Peter Heerey QC (Chair) | Mr Brian Pink | Mr Ed Killesteyn