Abbotto v Australian Electoral Commission

HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS DAWSON J

MATTER No. 37/1996; JOHN MURRAY ABBOTTO v. AUSTRALIAN ELECTORAL COMMISSION; No. S 97/002
Parliamentary elections

3 June 1997
Parliamentary elections

Parliamentary elections—Court of Disputed Returns—Senate—Petition that election void—Jurisdiction of Court of Disputed Returns—Validity of ticket voting system—Position of ungrouped independent candidates unable to register voting ticket. Constitution, s 10. Commonwealth Electoral Act 1918 (Cth), ss 168, 209, 210, 211, 211A, 327, 329(1), 355, 362(3), 364.

Orders

Order

Petition dismissed.

Decision

DAWSON J

1. This is an application by the Australian Electoral Commission ("the Commission") as respondent to a petition under Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). The petition to the Court of Disputed Returns was lodged by John Murray Abbotto ("the petitioner"), who was an unsuccessful candidate for election as a senator for the State of Victoria at the half-Senate election held on 2 March 1996. By s 354(1) of the Act the High Court is appointed to be the Court of Disputed Returns and its jurisdiction is prescribed by Pt XXII of the Act.

2. The orders sought by the Commission are that no proceedings be had on the petition and/or that the petition be dismissed upon the grounds that the petition does not comply with certain requirements of s 355 of the Act and that no ground alleged in the petition would, if established, entitle the petitioner to the relief sought in it. In the alternative, an order permanently staying proceedings on the petition is sought pursuant to O 63 r 2 of the High Court Rules.
3. The substantive relief which is sought in the petition is as follows:

"1. As per section 360(1)(vii) of the 'Act' declare the 1996 Election for the Federal Senate absolutely void.
2. As per section 360(1)(v) of the 'Act' declare any person or persons who was returned as elected was not duly elected.
3. Under the powers vested to the Court of disputed returns under s 360(1) the Court order a Re-Election for the Federal Senate for Australia as a whole and order that the Electoral Officer make the necessary amendments to the 'ballot paper' to give the 'Independents' equal status to all other Candidates in the same Federal Elections for the Senate."

4. The relief sought in the second and third paragraphs could only be granted consequent upon granting the relief sought in the first paragraph, namely that the 1996 half-Senate election for the entire Federal Senate be declared void. However, that relief is of a kind which the Court of Disputed Returns has no jurisdiction to order. As Brennan ACJ said in Muldowney v Australian Electoral Commission[1]:

"The framework of the Act as well as the language of s 355(c) indicates that the jurisdiction of the Court of Disputed Returns does not extend to the making of a declaration that the entirety of a general election is void. The jurisdiction to declare an election void on the petition of…