Assaf v Australian Electoral Commission
[2004] FCAFC 265
•30 SEPTEMBER 2004
FEDERAL COURT OF AUSTRALIA
Assaf v Australian Electoral Commission [2004] FCAFC 265
ADMINISTRATIVE LAW – judicial review – candidates for election to House of Representatives – eleven-stage procedure established in s 213(1)(a)(i) to (xi) of the Commonwealth Electoral Act 1918 (Cth) to determine order of names on ballot-paper – irregularity in conduct of stage of procedure set out in par 213(1)(a)(ix) – decision to repeat steps in procedure from par (i) – statutory construction – whether irregularity in conduct of procedure established in s 213(1)(a)(ix) vitiates entire procedure – whether irregularity required that procedure be conducted anew – whether irregularity in par (ix) could be cured by repeating the procedure from par (vii) – whether irregularity could be cured by partially repeating step set out in par (ix)
Commonwealth Electoral Act 1918 (Cth): ss 212(a) & 213
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth): s 39B(1) & (1A)Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, referred to
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, referred toWAJDE ASSAF v AUSTRALIAN ELECTORAL COMMISSION
V 1169 of 2004
GOLDBERG, FINKELSTEIN & WEINBERG JJ
30 SEPTEMBER 2004
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1169 of 2004
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WAJDE ASSAF
AppellantAND:
AUSTRALIAN ELECTORAL COMMISSION
RespondentJUDGES:
GOLDBERG, FINKELSTEIN & WEINBERG JJ
DATE OF ORDER:
30 SEPTEMBER 2004
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. There be no order as to costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1169 of 2004
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WAJDE ASSAF
AppellantAND:
AUSTRALIAN ELECTORAL COMMISSION
Respondent
JUDGES:
GOLDBERG, FINKELSTEIN & WEINBERG JJ
DATE:
30 SEPTEMBER 2004
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
GOLDBERG & WEINBERG JJ:
INTRODUCTION
This is an appeal from a single judge of this Court in respect of orders made dismissing an application for judicial review of the decision of a Divisional Returning Officer of the Australian Electoral Commission (“the Divisional Returning Officer”) to conduct a re‑draw in respect of the procedure established by s 213 of the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”) for the determination of the order of names of candidates on a ballot‑paper.
BACKGROUND
The appellant, Mr Wadje Assaf (“Mr Assaf”), is a candidate for election to the House of Representatives in the federal seat of Gellibrand in the current federal election, in which polling is due to take place on 9 October 2004. There are eight candidates who have nominated for election in the seat of Gellibrand.
On 17 September 2004 the Divisional Returning Officer conducted the procedure, established by s 213 of the Electoral Act, to determine the order of names of candidates as they are to appear on ballot‑papers in Gellibrand. The procedure was conducted, but was affected by an irregularity at some stage of the process (“the initial draw”) and the Divisional Returning Officer decided that the procedure should be repeated (“the re‑draw”) and that the results of the re‑draw be used to determine the order of names of candidates on the ballot‑paper (“the decision”). Mr Assaf’s position on the ballot‑paper fell from first to third upon the conduct of the re‑draw.
On 18 September 2004 Mr Assaf made an application to this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) for review of the decision, claiming that he was aggrieved on the basis that his position on the ballot‑paper fell from first to third upon the conduct of the re‑draw. Mr Assaf also sought review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth). His application was made on the grounds that:
·the procedures that were required by law to be observed in connection with the making of the decision were not observed;
·the decision involved an error of law; and/or
·the decision was otherwise contrary to law.
Mr Assaf sought a declaration that the order of names on the ballot‑paper be determined according to the result achieved in the initial draw and an injunction to restrain the Australian Electoral Commission from distributing ballot‑papers other than those printed in accordance with the result in the initial draw.
The primary judge dismissed Mr Assaf’s application on 18 September 2004, and gave reasons for judgment on 22 September 2004. The primary judge determined that the procedure established in s 213(1) had miscarried during the initial draw and that the Divisional Returning Officer was correct in carrying out a re‑draw. In the course of his reasons the primary judge found that subss 212(a) and 213(1)(a) reveal a legislative intention that a precise and transparent process be followed. Subsection 213(1) was considered to be the kind of process whereby an act done in breach of that process renders the entire process invalid (Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]) and which confers upon the Divisional Returning Officer a duty to determine the order of names strictly in accordance with its terms (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597).
By a Notice of Appeal dated 22 September 2004 Mr Assaf appealed from the decision of the primary judge on the grounds that “the decision of Marshall J was wrong in law” and sought orders that the application be allowed.
By an Amended Notice of Appeal dated 28 September 2004 the appellant appealed from the decision of the primary judge on the ground that the primary judge erred in law in finding that, in the event of an irregularity late in the process in complying with the requirements contained in s 213(1)(a)(ix) of the Electoral Act, the respondent was correct in conducting a re‑draw so as to enable the requirements of s 213(1)(a)(vii) to (xi) to be regularly carried out. The proper approach was said to be to conduct a re‑draw of so much of the process required by s 213(1)(a)(vii) to (xi) as had not been regularly carried out. The appellant sought orders that the primary judge’s decision be set aside, and a declaration that the re‑draw was valid up to the point that the last, the second last or the third last ball was taken out, or was caused to come out of the container, in accordance with s 213(1)(a)(ix) and that the re‑draw valid to that point remains valid.
LEGISLATIVE FRAMEWORK
Pursuant to s 212(a) of the Act it is the duty of the Divisional Returning Officer to determine the order of names of candidates on ballot‑papers. That determination is to be made in accordance with s 213 of the Act. Section 213 establishes an eleven-stage procedure by which to determine the names of candidates and involves two draws (“the s 213 procedure”). The first draw is conducted for the purpose of randomly allocating a number to each of the candidates (“the random allocation draw”) and the second draw is conducted in order to determine the order of candidates on the ballot‑paper (“ballot order draw”). Section 213(1) provides:
“Determination of order of names
(1)Where under section 210 or 212 a person is required to determine in accordance with this section the order of the names of candidates or of groups in ballot‑papers to be used in an election:
(a)the person shall, at the declaration time for the election, at the place where nominations for the election were publicly produced and before all persons present at that place:
(i)prepare a list of the names or groups, as the case may be, in such order as the person considers appropriate;
(ii) read out that list;
(iii)place a number of balls equal to the number of candidates or groups, as the case may be, being balls of equal size and weight and each of which is marked with a different number, in a spherical container large enough to allow all the balls in it to move about freely when it is rotated;
(iv)rotate the container and permit any other person present who wishes to do so to rotate the container;
(v)cause a person who is blindfolded and has been blindfolded since before the rotation of the container in accordance with subparagraph (iv) to take the balls, or cause the balls to come, out of the container one by one and, as each ball is taken or comes out, to pass it to another person who shall call out the number on the ball;
(vi)as each number is called out in accordance with subparagraph (v), write the number opposite to a name or group, as the case may be, in the list prepared in accordance with subparagraph (i) so that the number called out first is opposite to the first name or group, as the case may be, in the list and the subsequent order of the numbers in the list is the order in which they are called out;
(vii) place all the balls back in the container;
(viii)rotate the container and permit any other person present who wishes to do so to rotate the container;
(ix)cause a person who is blindfolded and has been blindfolded since before the rotation of the container in accordance with subparagraph (viii) to take the balls, or cause the balls to come, out of the container one by one and, as each ball is taken or comes out, to pass it to another person who shall call out the number on the ball;
(x)prepare a list of the numbers called out in accordance with subparagraph (ix) set out in the order in which they were called out in accordance with subparagraph (ix); and
(xi) write on the list prepared in accordance with subparagraph (x) opposite to each number the name or group, as the case may be, set out opposite to that number in the list prepared in accordance with subparagraph (i); and
(b)the order in which the names or groups, as the case may be, are set out in the list prepared in accordance with subparagraph (a)(x) is the order of the names or groups, as the case may be, determined by the person under this section.”
The issue that arose in this case was in respect of non-compliance with the ballot order draw, that is, the procedure set out in subss (vii) to (xi). The “declaration time” referred to in s 213(1)(a) means 12 noon on the day after the day on which nominations for the election close, as defined in s 213(6) by reference to the definition contained in s 175(2).
THE EVENTS OF 17 SEPTEMBER 2004
The s 213 procedure for the seat of Gellibrand was commenced at approximately 12.00pm on 17 September 2004 at the Electoral Commission offices in the Division of Gellibrand. A blindfolded employee of the Electoral Commission, Ms Grant, was given the task of selecting numbered balls from a wire mesh container, assisted by another employee Ms Watts to find the opening of the container. As Ms Grant extracted the balls from the container, Ms Watts took them and read out the numbers, as prescribed by subs (ix). The container contained eight balls, numbered one to eight, representing the number of candidates for the seat of Gellibrand. Ms Kaye Chamberlain, the Divisional Returning Officer for the Division of Gellibrand, supervised the procedure.
The initial draw was conducted, in accordance with the legislation, in two parts. It was common ground that the random allocation draw, that is the steps set out in s 213(1)(a)(i)‑(vi), was conducted without incident. Following the random allocation draw, Ms Watts reloaded the balls into the wire mesh container in accordance with s 213(1)(a)(vii). From that point on the facts relating to the conduct of the ballot order draw were in issue between the parties.
What is clear from the evidence is that Ms Grant began to remove the balls from the container and handed them to Ms Watts in accordance with s 213(1)(a)(ix) of the Act. As Mr Assaf’s number was drawn first, he was able to ascertain that he was to be the first candidate listed on the ballot‑paper. However it was discovered, only upon extracting the seventh ball from the container, that the eighth ball was missing from the container. The ball was found on the floor of the office shortly thereafter.
Upon the discovery that a ball was missing during the draw, Ms Chamberlain informed those present at the office that she suspended the s 213 procedure pending advice from her superiors as to the course of action to adopt in the circumstances. Ms Chamberlain was advised by her Operations Manager to re‑draw both the random allocation draw and the ballot order draw. In effect she re-started the procedure from subs 213(1)(a)(i) and determined the order of names of candidates on the ballot‑paper by reference to the results obtained in the re‑draw.
In the re‑draw Mr Assaf was allocated the third position on the list of candidates for Gellibrand.
Although the witnesses agreed on the point in time at which it was announced that a ball was missing, there was disagreement as to the point in time at which the missing ball ceased to be in the container. It is not necessary for the purposes of this appeal to set out in any detail the nature of the conflicting evidence on this issue as it does not bear upon the question of construction of s 213 presently before the Court.
It is accepted by both parties that there was an irregularity in the process of carrying out the second draw, and that this occurred, at the earliest, after the fifth ball was drawn from the container.
THE DECISION AT FIRST INSTANCE
According to the primary judge the dispute in the evidence as to precisely when during the ballot order draw the eighth numbered ball ceased to be in the wire mesh container was immaterial.
His Honour said (at [6]):
“At its highest, Mr Assaf’s case is that when the draw for the seventh position occurred the eighth ball dropped out of the container. At its lowest, the case for Mr Assaf is that the missing ball was not in the container when the third last ball was drawn. This is what the AEC [Australian Electoral Commission] contends and what I consider to be the most reliable account of events from its perspective. However, as the conflict in the evidence is immaterial, the court is prepared to accept the applicant’s evidence that the draw was regularly conducted up to and including the removal of the sixth ball (out of 8 present) from the container to determine the order of names on the ballot paper.”
On that basis the primary judge found that the procedure provided for in s 213(1) had miscarried and that the Electoral Commission was correct in conducting the re‑draw so as to enable the requirements of that subsection to be regularly carried out. His Honour reasoned this way (at [7]‑[10]):
“As the procedure provided for in s 213(1) miscarried, the AEC was correct to conduct a re-draw so as to enable the requirements of s 213(1)(a)(vii) to (xi) to be regularly carried out. The requirements of s 213(1)(a) evidence a purpose that an act done in breach of any of them renders the entire process invalid: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [93], per McHugh, Gummow, Kirby and Hayne JJ.
Section 212(a), when read with s 213(1), reveals a legislative intention that a precise, transparent, process be followed to the letter so that there can be no suggestion that any particular candidate has received favourable or unfavourable treatment and also to attempt to ensure fairness as between all candidates. The process is an entire one, such that a failure to complete any one of the prescribed steps will result in a failure to determine the order of names. The Divisional Returning Officer remains under a duty to determine the order of names strictly in accordance with s 213(1); see Minister for Immigration and Multicultural Affairs v Bhardwaj (2001) 209 CLR 597 at [14], per Gleeson CJ and [53] per Gaudron and Gummow JJ. The duty persists until it is perfected.
The Divisional Returning Officer was correct to conduct a re-draw for positions on the ballot paper when it was discovered that an irregularity had occurred in the first attempt to do so. As the initial attempt miscarried, the duty to carry out the process properly was not fulfilled until a regular draw was effected.
Mr Assaf’s bad luck at ‘losing’ the number 1 position on the re‑draw, unfortunately for him, cannot result, in law, in a situation where he keeps that position while a re‑draw is conducted for the last two or three positions. This in effect is what his counsel urged the Court to do by way of order. Once the process is tainted, the only fair and legally sound action to take was that taken by the Divisional Returning Officer.”
THE SUBMISSIONS OF THE PARTIES
The appellant submitted that, in the circumstances of the irregularity, a re‑draw was not required; the Divisional Returning Officer should have cured the irregularity by repeating the initial draw in respect only of the balls that were affected by the irregularity.
As such, even though s 213(1) is a process that requires strict compliance, strict compliance was possible by re‑drawing the last ball, the last two balls or the last three balls.
The appellant submitted that the Electoral Act does not provide any express guidance for the circumstances that arose on 17 September 2004 in the carrying out of the s 213 procedure, but that guidance should be taken from the intention of the Electoral Act that the candidates be ordered on the ballot‑paper by a transparent and random procedure. The procedure and the intention it evinces suggest that a candidate’s position on the ballot‑paper is a matter of importance in a fair electoral process.
The appellant contended that a re‑draw of only those balls affected by the irregularity would enhance the intention of the legislation because it supports a process that is not susceptible to corruption, in that the blindfolded person is not given the power to sabotage a draw by causing a ball to become missing from the container. Further, the appellant’s solution would see the procedure conducted closer to the declaration time of the election, being 12 noon on the day after the close of nominations, whereas the re‑draw was conducted nearly two hours later than the declaration time.
The respondent submitted that on any interpretation of the events of the s 213 procedure carried out on 17 September 2004, the initial draw miscarried and a re‑draw was required.
In substance the respondent submitted that the s 213 procedure miscarried because the balls in the container were not removed one by one, or passed to another person, and the number not called out as required by s 213(1)(a)(ix).
The respondent initially submitted that any failure to comply with the procedures required in par (ix), when read in conjunction with the entire eleven‑step process mandated by s 213(1), meant that the whole s 213 procedure was vitiated and that the whole process had to be re‑commenced from par (i). During the course of argument he resiled from that position and accepted that it was sufficient, in the case of non‑compliance with par (ix) to go back only as far as par (vii). The fact that the Divisional Returning Officer went back to par (i) in this case was of no substantive consequence since the repetition of the first six stages in pars (i) to (vi) could not have disadvantaged the appellant or anyone else.
CONCLUSION
There is no doubt that the procedure provided for in s 213(1)(ix) miscarried at some point after the first five balls had been drawn. Section 213(1) sets out in a sequential way the various steps which have to be taken, or events which have to occur, in order to enable the Divisional Returning Officer to determine the order of the names of candidates on the ballot‑paper. The relevant question is whether the content and structure of par (ix) is such that if at any point in the sequence of events set out an irregularity occurs, or the conduct of the event miscarries, that particular event must be carried out again from the point at which par (ix) commences to operate. Alternatively, is it sufficient to re‑commence the procedure only in relation to those aspects of par (ix) which have not been properly carried out?
We consider that the respondent was correct to resile from the original position taken that an irregularity in any one of the events in pars (i) to (xi) means that the Divisional Returning Officer must automatically go back to “square one” and start again with par (i). We consider that the structure and content of the section is such that, at most, it is only necessary to repeat those events which are integrally tied up or associated with the event in which the irregularity occurred. Section 213(1) contemplates and lays out a sequence of events most of which, if not all, are self‑contained and not interdependent upon each other in order for their validity to be established. For example, there is no interdependence or interrelationship between the second drawing of the balls from the container in par (ix) and the writing down of the numbers in accordance with par (vi) after the first rotation of the container is carried out.
We consider that, properly understood, the primary judge was expressing the opinion that if any one step in the series of steps to be taken under s 213(1) was not carried out properly or was the subject of irregularity, that step would have to be taken again but that it would not be necessary to re‑trace all of the steps back to par (i) of subs (1). We agree with that view, subject to one qualification. The qualification is that for the purposes of repeating the steps and the conduct required in par (ix) it was necessary to carry out again pars (vii) and (viii) in order for the balls to be available for a re‑draw.
Paragraph (ix) sets out a procedure which is to be continuous in the sense that it commences with the first ball being taken from the container, it being passed to another person who calls out the number on it and concludes (in this case) with the eighth ball being taken out of the container and its number being called out. This paragraph does not contemplate the process of the withdrawal of the balls from the container being carried out in separate stages. The chain of continuity required by the paragraph is not achieved if one or more balls have to be put back into the container and the process then continued until all the required balls are drawn with their number called out.
However, we should point out that nothing in our reasons should be taken to suggest or imply that a minor irregularity in carrying out the procedures required by any of the steps in pars (i) to (xi) necessarily vitiates that step, or any steps antecedent to it. For example, an irregularity or mistake in the listing of a number in accordance with par (x) which is immediately recognised and instantly corrected would not require the list or any step antecedent to the preparation of the list to be re‑commenced.
In the circumstances of the case the decision of the Divisional Returning Officer to go back to the commencement of the sequence in par (i) of subs (1) was not necessary or required by the statute. Indeed, it was itself an irregularity. Nevertheless, we do not consider that the action taken by the Divisional Returning Officer or the decision she made should now be disturbed. Nor do we consider that the decision taken by the Divisional Returning Officer vitiated the order of names in which she determined the candidates were to be placed on the ballot‑paper. The reason for this conclusion is that the first ballot is in a sense innocuous and does not create any entrenched position or accrued right for any of the participants in the ballot. Indeed it is difficult to see why it is necessary for there to be a first ballot. It does little more than create a sense of anonymity between the names of the persons on the ballot, and the balls allocated to them, but cannot affect any substantive right.
The effect of going back to step (vii) was to give each of the participants in the ballot an equal chance in respect of each position on the ballot. The fact that the Divisional Returning Officer went back to the first ballot did not affect or vary that equality of chance in any way. Accordingly, although there was an irregularity in the process, as a matter of discretion we are not disposed to interfere with the Divisional Returning Officer’s decision, or otherwise set it aside.
The respondent did not seek an order for costs before the primary judge but did seek such an order in respect of the appeal. The appellant submitted that each party should bear its and his costs of the appeal. We are of the opinion that each party should bear its own costs of the appeal. The cause of the litigation came about as a result of irregularity in the process undertaken by the respondent. Moreover, the primary submission advanced on behalf of the respondent both before the primary judge, and before this Court, has been rejected. The interpretation to be accorded to s 213 has been clarified, which can only be to the benefit of the respondent, and is in the public interest. In these circumstances, we are of the opinion that there should be no order as to the costs of the appeal.
We wish to record our appreciation for the assistance given to the Court by counsel for both parties having regard to the time constraints which were imposed upon them. We were assisted not only by their written submissions but also by their oral presentation.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Goldberg & Weinberg. Associate:
Dated: 30 September 2004
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1169 of 2004
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WAJDE ASSAF
AppellantAND:
AUSTRALIAN ELECTORAL COMMISSION
Respondent
JUDGES:
GOLDBERG, FINKELSTEIN & WEINBERG JJ
DATE:
30 SEPTEMBER 2004
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
FINKELSTEIN J:
In Australia, subject to certain immaterial exceptions, an elector casts his (or her) vote in a House of Representatives election by marking the vote on a ballot paper at a polling booth by writing the numbers 1, 2, 3, 4 and so on (as is required) in the square opposite the names of the candidates for whom the elector wishes to give his first and later preferences. The order in which the names of the candidates appear on the ballot paper must be determined in accordance with s 213 of the Commonwealth Electoral Act 1918 (Cth). This appeal arises because there was a breach in the procedures laid down by that section. The appellant, who is a candidate for election in the electoral division known as Gellibrand, says that he is entitled to be placed as the first candidate on the ballot paper. The Electoral Commission (the respondent) says otherwise. The outcome of this dispute depends upon the proper construction to be placed upon s 213. The full text of this section has been set out in the judgment of Goldberg and Weinberg JJ and need not be repeated.
Before dealing with the scope of s 213 it is necessary to explain the facts which gave rise to this proceeding. In all relevant respects they are uncontentious. Consequently I will take them (in summary) from the respondent’s outline.
An electoral officer declared there to be eight candidates for the division of Gellibrand. The appellant was one of those candidates. A returning officer then began the process of determining the order in which those candidates would appear on the ballot paper. Eight balls were placed in a container. The balls were taken out one by one by a blindfolded person. The blindfolded person handed each ball to another person, who read out each number. In that way, each candidate was allocated a number. I will refer to this as “draw 1”. The eight balls were apparently returned to the container and the blindfolded person took out seven balls, one by one, and handed each of them to the other person, who read out each number. The seven numbers were recorded in sequence. When the seventh ball was taken out, the returning officer observed that the container did not contain the eighth ball, which was then discovered on the floor.
It may be accepted, indeed it was common ground, that in view of these facts the returning officer did not take, or cause to be taken, each of the steps required by s 213(1)(a). The point at issue between the parties is short, but its resolution is not necessarily easy. It can be identified by stating the respective positions taken by each side. For his part, the appellant accepts that the numbered balls in the container were not taken out “one by one” and then passed to another person who called out the number on the ball as required by step (ix). This did not happen for one of two possible reasons. Either all numbered balls (that is one ball for each candidate) were not placed back into the container following the completion of draw 1. In that event step (vii) had not been complied with. Alternatively, if all the balls had been placed back into the container as required by step (vii) they were not taken out “one by one” as required by step (ix). In this case the returning officer does not know what went wrong. The evidence below suggests and the parties agree, that step (vii) had been complied with but when the fifth ball was taken out of the container one additional ball inadvertently fell out. For reasons which I will explain in a moment the precise cause is of no consequence.
As I mentioned earlier, the appellant acknowledges that the failure to take the numbered balls out of the container one by one meant that step (ix) had not been completed. He says, however, that it should have been completed by returning to the container the ball which had inadvertently come out, together with the last two balls, and then for the returned balls to be taken out one by one. The appellant accepts that if these three balls were returned to the container then an additional rotation of the container (step (viii)) would have been required and any person present could also have demanded the right to rotate the container, as in step (iv).
The returning officer had a different view, a view which, at least in part, was initially supported by the Electoral Commission. The returning officer decided that the problem created by the failure to complete step (ix) vitiated the entire process of determining the order of names on the ballot and she began that process again. During the course of the appeal the Electoral Commission modified its stand. It said that to deal with the problem all that was required was to begin the process at step (vii), that is to repeat the second draw.
The Electoral Commission bases its argument on the following proposition. The failure to complete any one step in the procedures required by s 213(1)(a) results in a failure to determine correctly the order of names. For that reason the procedure must be repeated. Ultimately, the Electoral Commission accepted that the breadth of this argument required some modification. It concedes that even assuming its central submission to be correct, on its proper construction s 213(1)(a) does not require all steps to be repeated if, for example, the failure was in the steps required to complete the second draw. The Electoral Commission now asserts that only the steps for the second draw need to be repeated.
This submission goes too far. There will be circumstances, no doubt rare, when strict compliance, that is “to the letter” compliance, with s 213 will not be required to produce a correct order of candidates on the ballot paper. Two examples will suffice. The determination of the order of the names must take place “at the declaration time” according to s 213(1)(a). The declaration time is defined by s 175(2) to be “12 noon on the day after the day on which nominations for the election close.” Circumstances may arise where it is simply impossible to begin the process at 12 noon. If, in that circumstance, it begins half hour late I would not hold the process to be invalid. The second example concerns writing up the list as required by step (vi) in the first draw and step (x) in the second draw. It may happen that the number on a ball drawn from the container is not called out correctly. In argument the example of a mistake between 6 and 9 was suggested. If the wrong number is called and recorded but the mistake is recognised and rectified there would, in my opinion, be proper compliance with the section. This would only be so following the correction of the mistake.
It is not, however, as easy as the appellant would have it to remedy an error which occurs during the carrying out of step (ix). The facts of this case identify the problem. The returning officer does not know what went wrong. A number of people present, including the returning officer’s assistant and the appellant believe they do. But their views are in conflict. If the returning officer has no view and other witnesses do, what is the returning officer to do? One solution, which is a solution suggested by the appellant, is for the returning officer to resolve the issue by receiving the parties’ views and determining which view is, or is likely to be, the correct one. The difficulty with this suggestion is that the statute does not empower the returning officer to undertake this task. Moreover, ordinary principles of statutory construction would not enable such a power to be inferred. For one thing there would be difficulty in determining the scope of the inferred power. Presumably the returning officer would be required to resolve the matter on the spot. There would therefore be no opportunity for submissions and certainly none for taking evidence. In any event, it is simply impossible to infer the power to take evidence. What then is the returning officer to do? The only step available to him (or her) would be to form a very rough assessment about the reliability of the different accounts. This is hardly a basis upon which the order on the ballot paper should be determined. Accordingly, at least in a case where the returning officer does not know what went wrong, it is inevitable that the process of conducting that particular draw (in this case the second draw) must be repeated.
If the process is to be repeated in those circumstance, logic demands that the process should also be repeated even when the returning officer has a view on the cause of the irregularity. The reason for this is that the returning officer may not be sufficiently certain to be able to “swear on a stack of bibles”, so to speak, that his view is correct. Even if the returning officer was certain of the position he or she may still be mistaken. Here, the step under consideration (that is step (ix)) is so important in the whole scheme of things that the possibility of a mistake must be avoided at all costs. That cost is the repetition of the draw.
I therefore agree that the appeal should be dismissed. I also agree that although draw 1 was impermissibly carried out a second time, that error is of no consequence in the circumstances. As regards costs, like Goldberg and Weinberg JJ I think they should lie where they fall. Finally, I would like to express my gratitude to Mr Cunliffe for having appeared pro bono for the appellant. His submissions provoked much anxiety on my part.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate:
Dated: 30 September 2004
Counsel for the Applicant: Mr Cunliffe Solicitor for the Applicant: Norton White Counsel for the Respondent: Mr P Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 September 2004 Date of Judgment: 30 September 2004
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