Aldridge v Electoral Commissioner of SA
[2010] SASC 194
•30 June 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Electoral Petition)
ALDRIDGE v ELECTORAL COMMISSIONER OF SA & ORS
[2010] SASC 194
Judgment of The Honourable Chief Justice Doyle
30 June 2010
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS
Petitioner challenged validity of election for House of Assembly District of Taylor and for Legislative Council – petition asserted breaches of different provisions of Electoral Act 1985 (SA) – common law of elections – first respondent applied to have petition struck out – petitioner proposed amended petition – whether petition complied with s 104 of Electoral Act – whether petition set out facts relied on to invalidate the elections – whether petition can challenge more than one election – whether proposed amended petition defective – whether petition can be amended to raise new matters – permission to amend petition refused – petition struck out.
Electoral Act 1985 (SA) s 8, s 14, s 23, s 48, s 69, s 70, s 72, s 74, s 75, s 78, s 82, s 102, s 103, s 104, s 105, s 106, s 107, s 109; Commonwealth Electoral Act 1918 (Cth), referred to.
Re Berrill (1978) 19 ALR 254; Webster v Deahm (1993) 116 ALR 223; Sykes v Australian Electoral Commission (1993) 115 ALR 645, applied.
Rudolphy v Lightfoot (1999) 197 CLR 500; Crafter v Webster (1979) 23 SASR 61, discussed.
Featherstone v Tully (2002) 83 SASR 302; Sue v Hill (1999) 199 CLR 462; Pavlekovich-Smith v Australian Electoral Commission (1993) 67 ALJR 711; Robertson v Australian Electoral Commission (1993) 67 ALJR 818, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"facts relied on to invalidate the election"
ALDRIDGE v ELECTORAL COMMISSIONER OF SA & ORS
[2010] SASC 194Court of Disputed Returns
DOYLE CJ: On 20 March 2010 the Electoral Commissioner conducted a general election for the House of Assembly, and an election for half of the Legislative Council: see s 14 and s 48 of the Electoral Act 1985 (SA) (“the Act”).
On 4 May 2010, after the return of the writ for the elections, Mr Aldridge filed a petition addressed to the Court of Disputed Returns challenging the validity of the election for the House of Assembly District of Taylor and for the Legislative Council: s 102 of the Act. The Supreme Court is the Court of Disputed Returns: s 103 of the Act.
On 11 June 2010, on application by the Commissioner, I ruled that the petition was liable to be struck out because it did not meet the requirements of s 104 of the Act and as well was not in an appropriate form. I gave Mr Aldridge the opportunity to recast his petition, and he did so. On 18 June 2010 I ruled that the proposed amended petition suffered from the same defects as the original petition. I refused permission to amend the petition and I struck out the petition.
I gave short reasons on each of these occasions. These are my more detailed reasons.
The Act
The provisions governing disputed elections and returns are found in ss 102-108 of the Act. The requirements for a petition are set out in s 104 which provides:
104—Requisites of petition
(1)A petition disputing an election or return must—
(a) set out the facts relied on to invalidate the election or return;
(b) set out the relief to which the petitioner claims to be entitled;
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election;
(d) be attested by 2 witnesses whose occupations and addresses are stated;
(e) be filed in the Court within 40 days after the return of the writ.
(2)At the time of filing the petition, the petitioner must deposit with the Registrar of the Supreme Court $200 as security for costs.
Section 106 provides:
106—Principles to be observed
(1)The Court is to be guided by good conscience and the substantial merits of each case without regard to legal forms or technicalities.
(2)The Court is not bound by the rules of evidence.
Provisions in substantially the same form are found in equivalent legislation in other States, although that legislation often adds that no proceedings are to be had on a petition that does not comply with the statutory requirements. This provision is not found in South Australia.
I consider that, in the exercise of its inherent powers, the Court can and should require that a petition be in a form that permits the Court and the respondents to identify the issues raised by the petition, and the allegations that are made. In other words, not only must the petition set out the facts relied on to invalidate the election, but it must also identify with reasonable particularity the grounds of complaint and the allegations to be made.
The parties
Section 105 of the Act provides:
105—Respondents to petitions
The Electoral Commissioner and the person who was the successful candidate at the relevant election are both respondents to any petition in which the validity of an election or return is disputed.
The Commissioner appeared as a respondent to the petition. None of the successful candidates were represented.
Mr Aldridge did not have legal representation. As will appear, he had difficulty preparing a petition in an acceptable form. This is not a criticism. The case that he wanted to present was a wide ranging challenge to the validity of the elections. It was based on hundreds of complaints made to him by email and in writing by many people. Some of the complaints were anonymous, some complainants are named. A petition that met Mr Aldridge’s objectives was always going to be a sizeable undertaking.
Principles
The legal principles or rules that are relevant to the Commissioner’s challenge to the petition are well known.
As I have said, the Court can and should require the petition to be in a form that adequately identifies the issues raised. As well, s 104(1)(a) and its equivalent in other States have always been treated as stating an important, indeed fundamental, requirement.
It is not enough for the petitioner to allege breaches of sections of the Act in general terms. The particular breach has to be identified, and the facts relied upon to prove the breach must be stated.
In Re Berrill (1978) 19 ALR 254, Gibbs ACJ (with whom Stephen, Mason, Jacobs and Aickin JJ agreed) said at 256:
But upon proper analysis, what she has alleged are conclusions of law. She has not stated the facts from which those conclusions may be drawn.
In her petition the petitioner had identified each of the sections the breach of which, or the failure to comply with which, she had alleged. This decision makes it clear that it is not enough to identify the section said to be breached. The finding of a breach of a section is a conclusion of law. That finding will be based on facts that lead to the conclusion, and it is those facts that are to be stated.
In Webster v Deahm (1993) 116 ALR 223 the petitioner alleged undue influence. Particulars of that allegation were given. They concerned the distribution of election material that was identified in reasonable detail. At 227 Gaudron J said:
None of the particulars given with respect to the allegation of undue influence reveals anything which is capable of being viewed as a contravention of s 327 of the Act or of s 28 of the Crimes Act. There is, thus, nothing more than a bare assertion of undue influence. It is well established that a bare assertion of that kind does not satisfy s 355(a) which requires that the petition “set out … facts” relied on to justify the relief sought.
Footnote omitted
The point her Honour makes there is that if the matters alleged could not establish the required breach, then in the end there is nothing more than a bare assertion of undue influence, and that will not suffice. A little later in her reasons she considered an allegation that votes had been wrongfully excluded from the count. Facts were not stated which would establish that the votes were wrongfully excluded. As to that, her Honour said at 235:
As earlier pointed out, the authorities clearly establish that s 355(a) of the Act is not satisfied by a mere assertion of some contravention of the Act. And it is not satisfied merely by asserting that provisional votes were unlawfully disallowed.
Footnote omitted
Again her Honour makes the point that if facts are not stated which could support a finding of breach, the allegation will be defective.
It is a matter for the Court to determine how far the petition must go in this respect. It need not set out all of the details. But, for a start, one must be able to identify the particular breach of the section that is alleged. And the facts that are stated must include what might be called the essential facts, those from which the alleged breach might be found. For example, in relation to s 70 of the Act (no error or omission in the roll disqualifies an elector from voting) it is not enough simply to allege, as the petition does, that complaints from a number of electors show that they were denied their rights to cast a vote due to an error in the roll. Nor is it enough to assert that a name should have been on the roll but was not. While an assertion in this form might be a sufficient allegation of error, namely, the omission of a name from the roll, it is still necessary for the petition to state the facts from which it can be concluded that the omission is attributable to an error in the roll or a defect in the roll.
In Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 649, Dawson J said:
The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity. That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied. The court would then be required to try the petition even though on its fact it could not succeed.
Footnote omitted
These requirements apply in relation to failures to comply with the Act that are relied on, and to an allegation that the result of the election was affected as required by provisions of s 107 which sets out the grounds on which an election can be declared void. In Webster v Deahm Gaudron J said at 225:
… the very minimum assertion necessary to constitute a fact which will “invalidate [an] election or return” for the purposes of s 355(a) of the Act is one raising a matter or matters by which “the election was likely to be affected”. In general terms, and leaving aside the situation in which a person was prevented from voting or in which a candidate was not eligible to stand (neither of which is claimed in this case), that can only be satisfied by an assertion that goes to or bears upon the casting or counting of votes.
Her Honour is there referring to the Commonwealth Electoral Act 1918 (Cth). However, what she says is applicable to s 104 of the Act.
These principles are not in conflict with the provisions of s 106(1) of the Act. In Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500 at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, referring to the equivalent section in the Commonwealth Act, approved the following statement by Dawson J in an unreported case:
[13] …
Broad as that provision may be, it does not confer a jurisdiction on the Court which it does not otherwise have under the Act. Nor does it dispense with the requirements of the Act. It merely requires that the Court should not be unduly formal or technical in the conduct of proceedings under the Act and enables it to depart from the rules of evidence.
The decision of the Full Court in Featherstone v Tully [2002] SASC 243; (2002) 83 SASR 302 holds that there is a “common law of elections” that applies in South Australia in relation to matters on which the Act is silent or does not make comprehensive provision: at [122]. Since then s 107 of the Act has been amended to provide additional grounds upon which an election may be declared void. There is now less scope for the common law to operate, but it has not been necessary for me to make any decision about the scope for the common law to operate. One thing is clear. To the extent that a matter is dealt with in s 107, and by that section must affect the result of the election if it is to be relied on, the requirement to show an effect on the result cannot be escaped by resorting to the common law. However, there may be scope for the common law to continue to operate in relation to a collection of individual complaints that, taken together, show that there was “no real election at all” or “that the election was not really conducted under the requirements of the Act”. On this point, I refer to the comments by McHugh J in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at [226]-[237].
The petition
The petition asserts breaches of at least 14 different provisions of the Act. It asserts breaches of various subsections, and numerous breaches of the sections in question. It does so in general terms, with no identifying particulars. The petition is accompanied or supplemented by Attachments A-K comprising about 277 pages. It is difficult to summarise the material in the attachments. Some of it is completely irrelevant. A lot of it comprises email messages to Mr Aldridge from many people alleging in general terms breaches of the Act. Sometimes some particulars are given. Some of the material is argumentative. The attachments include some letters from people criticising the election process, and statements. It is a substantial task to read this material, attempt to relate it to the petition and attempt to identify what are the complaints made.
The proposed amended petition is in a similar form although it is more detailed. It has two attachments, L and M numbering 138 pages. Mr Aldridge said that the amended petition relies only on attachments H, L and M, but in fact it contains references to other attachments to the original petition.
Attachments L and M also contain a lot of email messages, a number of statements by individuals alleging breaches of the Act, and some electoral material.
The proposed amended petition is in a better form that the original petition, but again contains many quite general assertions of breaches of the Act. However, it also contains references to statements and statutory declarations and claims made in Attachments L and M, some of which assert facts which are some of the facts essential to establish a breach of a section. However, close scrutiny of the allegations and statements and letters discloses that sometimes the complaints are general in terms, or mere assertions of breaches; sometimes what is alleged could not, of itself, lead to a finding of a breach of, or non-compliance with, the Act; sometimes the matter alleged or relied on cannot, as a matter of law, lead to a relevant finding under s 107, and only sometimes is there a clear statement of the facts relied upon. It is usually left to the reader to deduce the facts relied on. Not uncommonly the complaints are second hand, that is, a person states that that person has heard from other persons about complaints of non-compliance with the Act. These complaints are usually no more than assertions of breaches of the Act in quite general terms, often without reference to any particular section.
Reasons for finding the petition defective
I treat the attachments to the original petition and the amended petition as part of the petition. The attachments contain a mass of material, some of which is completely irrelevant. A lot of the material is in the form of general and unparticularised complaints about the electoral process. I found it necessary to comb through the attachments searching for specific or particularised allegations of a breach of the Act, and then it was necessary to examine the allegations to determine whether or not they were in fact an assertion of breach, and whether or not it could be said that facts were set out, or at least asserted by implication.
At several directions hearings I explained to Mr Aldridge the importance of putting the petition in a form in which specific breaches of the Act were alleged and were supported by the assertion of facts from which a finding of breach could be made. Unfortunately, the task proved to be beyond him.
The manner in which the petition presents material is a substantial defect. It puts the Court and the Commissioner in the position of having to search for sustainable allegations. If there are any, there are no more than a handful. And as to those handful, there remains the further problem of identifying facts from which it could be said that the result of the election was affected.
In his submissions Mr Aldridge indicated that his argument was that the Court can and should generalise from individual allegations or breaches to a conclusion that there were multiple breaches. I accept that in any election there will be an element of human error, and that one can infer that certain errors are likely to have occurred on more than one occasion. But it is another thing to say that from a handful of properly alleged breaches (if they are properly alleged) one could infer multiple further breaches. Statements in the attachments to the effect that the sender of an email message has heard of other complaints of a particular type, cannot provide a basis for a finding of multiple breaches.
As I have said, the manner in which the material was presented is a substantial defect. If this was the only problem, and if in the petition or the attachments I found a number of clearly identifiable and properly alleged breaches, it might well have been possible to treat the other material as irrelevant. But that is not the case.
I turn now to the petition as originally filed, to illustrate the deficiencies in it and in the proposed amended petition.
A number of the grounds raise a recognisable or relevant issue under the Act. But the petition fails to identify the complaints with adequate particularity, fails to plead the facts relied upon, and does not identify a basis upon which the result of the election could be affected.
An example is Ground 1, which refers to s 70(1) of the Act, providing:
(1)No error or omission in the roll disqualifies an elector from voting.
Under the reference to the section appears the following “Statements of fact”:
A)Attached reports (attachment A) from a variety of voters in the South Australian State 2010 March Election [election] clearly show that they were denied their rights under [the act] to cast a vote due to both a defect in the roll and the inadequate education of the polling booth staff to understand their rights and obligations under [the act].
B)The forfeiture of the many of the electorates entitlement to vote, clearly casts doubt on the result of the election, the electoral commissioners requirement to ensure they were adequately informed of their rights and obligations under the act, failed casting doubts on the education received by both the polling booth staff and the electorate in general.
C)In the upper house the electoral commissions own published figure conclude their were over 80,400 enrolled voters who did not attend to vote, the figure for the lower house is irregular due to a different total being shown on the commissions web site, 78,474, considering the huge number of electors reporting that they believed themselves to be enrolled but whom were denied their vote and the many reports of lost postal votes, it could be considered on the balance of probabilities that votes upwards of 100,000 could be in doubt. (also see attachment F regarding completed surveys.
[In this and other extracts I have replicated the errors and emphasis that appear in the petition.]
Inspection of the attachments discloses a large number of bare assertions of breaches of this or a related provision, assertions of a denial of the entitlement to vote, and assumptions or assertions that this is due to an official error. It may be that in a few cases there is sufficient particularity, and sufficient facts identified at least by implication, but that is the best one could say.
The same applies to Ground 8, which invokes s 69, and the entitlement of an enrolled elector to vote.
Ground 1a invokes s 23, which requires that rolls be revised, corrected and kept up to date. The following “Statements of facts” appears under the reference to this section:
A)the electoral commissioner has been derelict in her duties to ensure the electoral roll is up to date, under aforementioned sections (a) (b) (c) as attached reports from electors support the fact many long term voters who had not been moved by boundary division found them selves of the roll for the first time in many years, there are also reports of deceased electors remaining on the roll, and many mistakes and omissions in the rolls in general. (see attachment A)
A number of grounds complain that electors who were entitled to a declaration vote did not receive one. These grounds invoke s 78, s 82 and s 74. Ground 2 contains the following “Statements of facts”:
A)Attached reports and affidavits of electors (Attachment A, B, C) clearly indicate that section 78 of [the act] was not adhered to in the conduct of the [election], it is apparent that some voters were denied their ballot papers, others never received their postal ballots in time to cast their vote and some polling booths reported to run out of declaration voting papers, and several voters publicly admitted being denied entry to the polling booth due to their attire, denying many the franchise that should be protected by [the act] to cast their votes. (73 b (4) an exact record must be kept of all persons to whom ballot papers are issued.)
Once again, the material comprises mainly assertions, assertions which are unparticularised and lacking supporting facts. The same applies to Ground 7 and Ground 10.
Ground 3 refers to s 109 of the Act, which prohibits the offering of bribes. The “Statements of facts” is as follows:
A)During the conduct of the [election] the state Labor party issued campaign material that had the effect of an offer to the electorate in certain areas that was designed to influence the vote of an elector, with statements in writing as to how the electorate viewed the offer, see (attachment D). This section may not be able to stand alone, but with out doubt is one of the many irregularities.
This is clearly deficient.
Ground 5 raises a complaint that electoral advertisements of a prohibited kind were used, but again there is a failure to link the advertisements in any way to the division of Taylor or to the election for the Legislative Council.
Ground 9 invokes s 75, which requires the provision of fresh voting papers to an elector who has inadvertently spoiled voting papers. The “Statement of facts” is as follows:
A)My personal experience showed again that some of the staff at the polling booths were very much as un-informed as the electorate, I made several mistakes trying to vote below the line on the legislative ballot paper, my initial request for a new ballot paper was refused and only when I demanded one, knowing well [the act] I received one, what may have happened to the ill informed, for supporting examples from the electorate see (Attachment H) and the results of the surveys (F).
This is an example of Mr Aldridge asserting a breach, which did not in fact occur, and arguing that what happened in his case led to an inference of breaches in other unspecified cases. This is not a permissible form of allegation.
There is another group of grounds where the allegation could not affect the validity of the election, or the result of the election. These grounds also lack particularity. Ground 4 and Ground 11 can be put in this category. Ground 11 invokes s 72, which requires an officer, before issuing voting papers, to put certain questions to the person. The “Statement of facts” is as follows:
A)The introduction of the “Easy Voting Card” resulted in many reports of no questions being asked to confirm either (a) to establish identity and (b) if the elector has voted yet, my personal experience found neither questions being asked, making matters worse is the many reports with in the electorate that some did not receive their ‘Easy voting card” and others who abused the process through theft of the cards or multiple use, casting more doubt on the final voting figures and therefore the validity of the election, See Attachment (H) and survey (F).
The remaining grounds raise matters that could not, as a matter of law, of themselves be a basis to invalidate the election. Grounds 6, 10a and 12 are in this category.
For example, Ground 6 invokes s 8 of the Act, which sets out the powers and functions and the responsibilities of the Commissioner, in particular the responsibility for the proper conduct of elections and for carrying out appropriate programs of publicity and public education. Mr Aldridge alleges that not enough was done by the Commissioner to inform the electorate about candidates and their entitlement to vote (putting things generally). In my opinion a breach of s 8 cannot, of itself, be a ground to invalidate the election. If such a breach gave rise to an irregularity in the voting process, then that irregularity could be relied upon, but that is as far as one can take it. In my opinion these grounds are all defective.
It was for those reasons that I held that the petition as originally filed was liable to be struck out.
The proposed amended petition suffers from the same defects. It is more detailed. On the other hand, it is still necessary to read the attachments. There is a lot of irrelevant material. Statements of potential witnesses are referred to, and the statements are in the attachments. It remains necessary to read the material, and to determine just what the precise complaint and allegation is, and what the facts are. In the end, on a close scrutiny the same defects emerge. The inadequacies identified above apply to each of the grounds raised in the proposed amended petition. Once again, I accept that this document may be found to contain some sustainable allegations, once all of the irrelevant and inadequate material is carved out. But it remains the case that there is no basis asserted, let alone facts stated, upon which one could conclude that the result of the election could be invalidated.
There is one particular matter I should refer to. In the proposed amended petition, for the first time, Mr Aldridge alleges that the Commissioner failed to arrange for electoral visitors to attend at a number of declared institutions. This is based on an ambiguous statement by the Commissioner in response to some questions by Mr Aldridge, which the Commissioner answered in writing. Mr Wait, counsel for the Commissioner, submitted that while the written statement was ambiguous, the Commissioner’s case was that all declared institutions had been visited by an electoral visitor.
This being a new allegation, not raised within the 40 days, I had to consider whether I should allow an amendment, assuming that I had power to allow an amendment to raise new material. Even assuming I had such a power, I considered that it is not appropriate to exercise the power to grant permission to amend on what appears to be a flimsy basis.
For those reasons I refused permission to amend by substituting the proposed amended petition. It was not necessary to consider whether it was appropriate to allow a wholly defective petition to be amended in this way.
Nor was it necessary for me to consider whether I could, or should, allow an amendment which raised matters not raised within the time limit for the filing of the petition. The decision of the Full Court in Crafter v Webster (1979) 23 SASR 61 holds that such an amendment can be allowed. But when that case was decided the Act was in a different form. For present purposes I have assumed that the decision in Crafter applies to the Act as it now is, but without deciding the question.
I mentioned at the outset that Mr Aldridge challenged the result of the election for the District of Taylor, as well as the result of the election for half of the members of the Legislative Council. Mr Wait argued that one petition cannot challenge the result of more than one election, and so the inclusion of a challenge to two separate elections (although conducted on the same day) invalidated the petition. Mr Wait relied mainly on some of the practical difficulties that can flow from a challenge to two different elections being included in the one petition. There is some force in his submission. There are decisions which appear to accept that a single petition can be used to challenge the result or return in more than one election, provided that the petitioner was a candidate or qualified elector in each of the elections: Pavlekovich-Smith v Australian Electoral Commission (1993) 67 ALJR 711 at 712 and Robertson v Australian Electoral Commission (1993) 67 ALJR 818 at 818-819. In the end I did not have to make a decision on this point, although I was inclined to think that the petition was not defective in this respect.
There was a more fundamental difficulty in relation to the District of Taylor. There was a failure to raise allegations in relation to the election for the District of Taylor, as Mr Aldridge acknowledged. From the outset he indicated that his main concern was the election for the Legislative Council. The proposed amended petition indicated that Mr Aldridge no longer pursued his challenge to the election for the District of Taylor, and it was therefore not necessary to consider that matter any further.
Concluding observations
Mr Aldridge’s entitlement under the Act to challenge the result of the election is an important individual right. The Court is reluctant to prevent an elector from exercising that right. There is a public interest in a proper challenge to the result of an election being dealt with on the merits and decided.
But for obvious and good reasons, a challenge to the result of an election must be made promptly, clearly, and must be supported by a statement of the facts relied on. Something as important as an election result under the Act cannot be challenged by a petition that fails to adequately identify what the allegations are, what the facts relied upon are, and how the asserted irregularities could affect the election result.
Over the course of three directions hearings I did my best to encourage Mr Aldridge to put the petition into a proper form. I gave him an opportunity to prepare an amended petition, after concluding that the petition as filed was defective. However, as I have explained, the proposed amended petition suffered from much the same defects.
Conclusion
For those reasons I refused permission to amend the petition, and ordered that the petition be struck out. The Electoral Commissioner did not seek an order for costs against Mr Aldridge.
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