FEDERAL COURT OF AUSTRALIA Howard v Australian Electoral Commission [2000] FCA 1767 PRACTICE & PROCEDURE – application for extension of time to file and serve a notice of appeal – whether there were "special reasons" justifying extension – whether discretion should be exercised to dismiss application despite "special reasons" – factors to be considered in exercising discretion include the importance of the questions sought to be raised, the bona fides of the proposed appeal and the strength of the proposed grounds Commonwealth Electoral Act 1918, s 93(1) Federal Court Rules, O52 r 15 Jess v Scott (1986) 12 FCR 187, followed SUSAN ANNE HOWARD v AUSTRALIAN ELECTORAL COMMISSION N 1171 of 2000 BRANSON J SYDNEY 29 NOVEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1171 of 2000 BETWEEN: SUSAN ANNE HOWARD APPLICANT AND: AUSTRALIAN ELECTORAL COMMISSION RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 29 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time to file and serve a notice of appeal be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1171 of 2000 BETWEEN: SUSAN ANNE HOWARD APPLICANT AND: AUSTRALIAN ELECTORAL COMMISSION RESPONDENT JUDGE: BRANSON J DATE: 29 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a notice of appeal from a judgment of Mathews J given on 10 October 2000. The application was made on 2 November 2000, that is only two days outside the time provided by the Federal Court Rules for the filing and serving of an notice of appeal. Mathews J dismissed the applicant's appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision of an Australian Electoral officer under section 120(6) of the Commonwealth Electoral Act 1918 ("the Act"), which had itself affirmed an earlier decision to reject the applicant's application for enrolment on the Australian electoral roll. 2 Her Honour summarised the factual background to the appeal before her as follows: "Ms Howard was born in England on 4 September 1950. She arrived in Australia eight years later and, apart from a period of approximately one year, has remained in Australia ever since. She is a British subject and has not taken out Australian citizenship. Between 1973 and 1977 her name was on the electoral roll in the Parramatta Division, being the area where she then lived. At that time, British subjects were entitled without restriction to have their names entered on the electoral roll in Australia. Ms Howard returned to England for about a year between the middle of 1978 and the middle of 1979. Her name appeared on the electoral roll in September 1977 but was not on it when the next roll was issued in August 1979. She did not attempt to reinstate her name onto the roll until December 1984." Section 93(1), of the Act provides as follows: "Subject to subsections (7) and (8) and to Part VIII, all persons: (a) who have attained 18 years of age; and (b) who are: (i) Australian citizens; or (ii) persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984: (A) on the roll for a Division; or (B) on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922; shall be entitled to enrolment." The applicant concedes that she is not a person who comes within either of subparagraphs (b)(i) or (b)(ii) of s 93(1). 3 The applicant has given affidavit evidence that she consulted a solicitor promptly after the delivery of the judgment of Mathews J. The solicitor sought the advice of a barrister. It appears that the applicant received a letter from her solicitor on either 1 November or 31 October 2000 advising her that "the barrister would not proceed with the case". The applicant proceeded promptly thereafter to make the present application herself. 4 Order 52 r 15, which fixes the time within which a notice of appeal must be filed and served, provides by subrule (2) that: "… the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." 5 The Full Court gave consideration to the matters necessary to establish the existence of special reasons justifying the grant of leave to appeal out of time in Jess v Scott (1986) 12 FCR 187. At page 195 the Court said: "What is needed to justify an extension of time is indicated in rule 15(2) by the words 'for special reasons'. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 6 The circumstances surrounding the failure of the applicant to file and serve a notice of appeal within the time allowed by the rules are such that, subject to the matters which I will shortly mention, grounds for departure from the general rule that a notice of appeal is to be filed and served within 21 days after the date when the judgment sought to be appealed from was pronounced can be identified. 7 However, even where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought. Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal (Jess v Scott at 188). 8 By her draft notice of appeal the applicant asserts that rights afforded by the Constitution have been removed from her but she has not identified any such constitutional rights. I am not aware of any provision of the Constitution which limits the powers of Parliament pursuant to s 51(xxxvi) to make laws concerning the qualification of persons who are not Australian citizens to be electors of members of the House of Representatives (s 30) and electors of Senators (s 8). 9 The applicant indicated today in her oral submissions that her real concern is that the Australian Electoral Commission should not be able to remove the name of any person from the electoral roll but should only be able to fine a person who does not notify the Commission of his or her change of address. This does not seem to be a constitutional issue. In any event, no constitutional issue was raised before Mathews J and the applicant concedes that the issues that she now wishes to advance, should this appeal be allowed to proceed, are issues which she has not pursued earlier before either the Administrative Appeals Tribunal or before Mathews J. 10 The Full Court of this Court on appeal sits for the purpose of correcting error, if any, made by a judge sitting at first instance. Mathews J would not have been in error in failing to deal with matters that were not argued before her and, indeed, could not have been argued as no notice under s 78B if the Judiciary Act 1903 (Cth) had issued before the hearing of the appeal before Mathews J. 11 Both before Mathews J and before me, the applicant has apparently accepted that in reality she has no legal entitlement to be on the Australian electoral roll. However, she asserts that it is right, proper and just that she be entitled to vote in this country where she has lived for most of her life, and that the electoral law relied on to remove her from the roll is an unjust law. As I understand it, she wishes to have the opportunity to ventilate her sense of injustice before the Full Court of this Court. As I sought to explain to the applicant when this matter was first before me, if she is dissatisfied with the policy behind the Australian electoral laws it is appropriate for her to seek political rather than legal redress. The role of this Court is to interpret and apply valid laws of the Parliament. 12 The application for an extension of time to file and serve a notice of appeal is dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 5 December 2000 The applicant appeared in person. Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 November 2000 Date of Judgment: 29 November 2000