Application under S.218 in relation to Irregularities Alleged in the conduct of the Election

[1990] FCA 466

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	)
1
1NDUSTRIA.L DIVISION	1
IN THE MATTER OF AN APPLICATION TO ISSUE MORE THAN SIX MONTHS AFTER THE DATE OF THE DECLARATION OF THE RESULT OF AN ELECTION
AN APPLICATION UNDER S. 218
I N R E L A T I O N T 0 IRREGULARITIES ALLEGED IN THE CONDUCT OF THE ELECTION
24 AUGUST,	KEELY J.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT)

I think it is fair to say that in a very real sense you have advanced every argument that could possibly be advanced in support of this proposition. Without wishing to unnecessarily compliment you I would say that you have been imaginative, even inventive, in some of the arguments that you have put, and some of the ways in which you have sought to use the authorities and the principles.

The statute, in sections 218 and 219, deals with the election. The draftsman of that pair of sections must have question of an inquiry into what may be broadly called a Union

I think that my view on it probably sufficiently appears from the discussion we have had here today, but I will endeavour to simply briefly summarise it.

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been aware of the fact that the Parliament was going to confer upon the Governor-General the power to make regulations under S. 359(2) of the Act fixing "the time within which applications ... under this Act may be made ...". Those words are taken from section 359(2)(a).

In my view the application lodged with the Registry, which is the subject of these submissions to the court, is plainly an application "under this Act" which the applicants wish to have determined by the court.

As I have endeavoured to point out in the course of the discussion, the problem facing the applicants is that Parliament has taken out of the pre-existing Act (in the sense of not inserting in the new Act) a provision which dealt directly with the question of the time within which an application for an Inquiry could be made: it had an express provision which might have enabled the present applicants, depending on the facts, to have made the application if it had

come at a time before the present Act came into force in March	1989.
In the new Act Parliament, instead of fixing a time limit, has given to the regulation-making authority the power to fix, "the time within which applications . . . may be made". I do not read those words as being in any way limited by S. 359(1). Reading the section as a whole and as part of the Act, in my opinion the Parliament deliberately gave to the

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Governor-General the power to make regulations fixing "the time within which applications . . . under this Act may be

made " .

The submission here is that regulation 62 is outside that power. Regulation 62 provides:

"An application under section 218 of the Act for

in inquiry into an election may be made:

(a)	at any time before; or
(b)	not later than six months after;

the day on which the result of the election is
declared."

Now on the face of the application lodged in the Registry, the result of the election was declared in August last year, and plainly the present application is outside the time limit of six months. In other words, it does not fall within the words, "not later than six months after the day on which the result of the election is declared."

In those circumstances, counsel has argued that the regulation is invalid as being repugnant to the Act. In doing that she attaches, in my view, greater significance than can fairly be given to the fact that S. 218 does not expressly deal with the question of time.

Counsel says that it deals with this and it deals with
that but it does not say anything about the time within which
an application for an Inquiry may be brought. Counsel then

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submits that therefore it intends that there will not be any
time limit.

In my opinion the answer to that submission is that Parliament inserted S. 218 in the same Act and at the same time as it inserted S. 359(1) and S. 359(2). I reject the submission that has been put because in my opinion S. 359(2) plainly and deliberately confers on the Governor-General a power to fix by regulation "the time within which applications

. . . under this Act may be made, and the word "applications"
includes the present application for an Inquiry under S. 218.

So that despite the forceful advocacy that I have listened to carefully, I am unable to uphold the basic submission. I perhaps should say, although I think it is obvious from what has already been said, that Miss Hickey kindly gave my associate yesterday a list of the authorities to which she would be referring. I have read them and also those additional authorities she gave this morning, including

one just before I came into court. All of those authorities	have been read, and I do not find myself in disagreement with
any of the principles enunciated in them. I do not accept that they apply so as to support counsel in relation to the present application. That is the reason why her submission must fail.
Now the result of all that is that I am not satisfied under S. 219 "that there is reasonable ground for the

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application". In saying that I am not saying anything about the facts set out in the application. I have not had those tested in any way and I am not, of course, expressing any view as to those claims. I am merely saying there is no reasonable ground for the application in the sense, and only in the sense, that, in the view I take of the law, this is an application which cannot be dealt with by the court because it

is brought "later than six months after" the declaration of

the result of the election.

In those circumstances I formally refuse to fix, under S. 219 of the Act, a time and place for conducting the Inquiry and I do that because, in my view of the law, the application is out of time and the court cannot deal with it.

I certify this and the preceding four pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely as recorded in the draft

transcript and revised by his

Honour on 2 4 August, 1990.

Associate:  G. M C %

Date:  2 4 August, 1990.