Assaf v Australian Electoral Commission - [2004] FCA 1239

FEDERAL COURT OF AUSTRALIA
Assaf v Australian Electoral Commission [2004] FCA 1239
ADMINISTRATIVE LAW – application for review of decision of the Australian Electoral Commission – whether Australian Electoral Commission erred in effecting a full re-draw following an irregularity in the procedure set out in s 213(1) of the Commonwealth Electoral Act 1918(Cth) – application dismissed
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39B(1) and s 39B(1A)
Commonwealth Electoral Act 1918 (Cth) s 212 and s 213(1)
McKenzie v Commonwealth (1984) 57 ALR 747, referred to
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, referred to
Minister for Immigration and Multicultural Affairs v Bhardwaj (2001) 209 CLR 597, referred to
WAJDE ASSAF v AUSTRALIAN ELECTORAL COMMISSION
V 1153 OF 2004
MARSHALL J
22 SEPTEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1153 OF 2004

BETWEEN:

WAJDE ASSAF
APPLICANT

AND:

AUSTRALIAN ELECTORAL COMMISSION
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

18 SEPTEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.

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 1153 OF 2004

BETWEEN:

WAJDE ASSAF
APPLICANT

AND:

AUSTRALIAN ELECTORAL COMMISSION
RESPONDENT

JUDGE:

MARSHALL J

DATE:

22 SEPTEMBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 18 September 2004 the Court announced, at the end of the submissions of counsel in the proceeding, that it would order that the application be dismissed. That order was made. No order was requested or made concerning costs. What follows are the reasons of the Court for dismissing the application.
On 17 September 2004 the applicant, Mr Assaf, applied pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) to review a decision made by the respondent Australian Electoral Commission (“the AEC”) under s 213 of the Commonwealth Electoral Act 1918 (Cth) (“the Act”).
Mr Assaf is a candidate for election for the House of Representatives in the current federal election for the seat of Gellibrand. He attended the offices of the AEC in the division of Gellibrand to observe the draw for positions on the ballot paper at 12 noon on 17 September 2004. When the draw commenced Mr Assaf was, no doubt, delighted to observe that he had drawn the number 1 position on the ballot paper. However, due to an irregularity which occurred during the later stage of the draw, the relevant official of the AEC (the Divisional Returning Officer for the division of Gellibrand) determined to effect a re-draw. On the re-draw, Mr Assaf drew the number 3 position. Understandably he felt aggrieved and challenged the AEC’s actions in allowing a full re-draw, rather than a re-draw for the last two positions on the ballot paper.
The legislative context
Section 212(a) of the Act provides:
“In printing the ballot-papers to be used in a House of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 1239
Decision Date: 18 SEPTEMBER 2004

CaseChat Overview and Summary

The case of Assaf v Australian Electoral Commission involved the applicant, Mr Assaf, challenging the decision of the Australian Electoral Commission (AEC) regarding the allocation of positions on a ballot paper. The dispute centred on the validity of a ballot draw conducted by the AEC to determine the order of candidates' names on the ballot paper. Mr Assaf argued that he should retain the number one position on the ballot paper, despite the AEC conducting a re-draw after an irregularity was discovered in the initial draw. The Federal Court was tasked with determining whether the AEC's decision to conduct a re-draw was lawful and whether Mr Assaf should retain his original position on the ballot paper.

The central legal issue before the court was whether the AEC was required to conduct a re-draw of the ballot positions after an irregularity was discovered in the initial draw. The court needed to interpret the provisions of the Commonwealth Electoral Act 1918, specifically s 212(a) and s 213(1), to determine the legislative intention regarding the ballot draw process and whether a failure to follow the process correctly rendered the entire process invalid. Additionally, the court had to consider whether Mr Assaf should retain his original position on the ballot paper despite the re-draw.

The court found that the provisions of the Commonwealth Electoral Act 1918, particularly s 212(a) and s 213(1), evidenced a legislative intention for a precise, transparent process to be followed to avoid any suggestion of favouritism or unfairness among candidates. The court emphasised that the process is an entire one, such that a failure to complete any one of the prescribed steps would 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). Since the initial draw was flawed, the AEC was correct to conduct a re-draw to ensure the process was properly completed. Mr Assaf's argument that he should retain his original position despite the re-draw was rejected as it would have resulted in an unfair outcome. The court concluded that the only fair and legally sound action was that taken by the Divisional Returning Officer.

The court ordered that the application be dismissed, thereby upholding the AEC's decision to conduct a re-draw for the ballot positions. The court's decision underscored the importance of following the prescribed process to ensure fairness and transparency in the electoral process.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

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.Conclusion and Order 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. For the above reasons the Court ordered that the application be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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 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. It is not in dispute that after the second last ball was drawn from the container the last ball should have been in the container but had dropped out onto the floor of the AEC’s office, at some earlier time.Consideration 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.Conclusion and Order 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. For the above reasons the Court ordered that the application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1153 OF 2004

BETWEEN:	WAJDE ASSAF APPLICANT
AND:	AUSTRALIAN ELECTORAL COMMISSION RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	18 SEPTEMBER 2004
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	22 SEPTEMBER 2004
PLACE:	MELBOURNE