Australian Electoral Commission v Bamblett

[2004] FCA 755

FEDERAL COURT OF AUSTRALIA

Australian Electoral Commission v Bamblett [2004] FCA 755

AUSTRALIAN ELECTORAL COMMISSION  v  LESLIE BAMBLETT

V 327 of 2004

RYAN J

11 JUNE 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 327 of 2004

IN THE MATTER of a disputed election under the Aboriginal and Torres Strait Islander Commission Act 1989
BETWEEN:	AUSTRALIAN ELECTORAL COMMISSION Applicant
AND:	LESLIE BAMBLETT Respondent
JUDGE:	RYAN J
DATE OF ORDER:	11 JUNE 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Leave be granted to amend the applicant’s name to the “Australian Electoral Commission”;

2.        The election of the respondent, Leslie Bamblett, be declared absolutely void;

3.The returning officer be directed to fill the casual vacancy created by the resignation of Mr Gavin Brown in accordance with the Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990;

4.        Liberty be reserved to the petitioner or to any person affected by this order to apply.

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 327 of 2004

IN THE MATTER of a disputed election under the Aboriginal and Torres Strait Islander Commission Act 1989
BETWEEN:	AUSTRALIAN ELECTORAL COMMISSION Applicant
AND:	LESLIE BAMBLETT Respondent
JUDGE:	RYAN J
DATE:	11 JUNE 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 19 October 2002, an election was held for the Tumbukka Regional Council (“the Council”) of the Aboriginal and Torres Straight Islander Commission (“ATSIC”), as established under the Aboriginal and Torres Straight Islander Commission Act 1989 (“the ATSIC Act”).  The election was for five councillors of the West Melbourne Ward of the Regional Council.  Five persons, Gavin Brown, Troy Austin, Alf Bamblett, Lisa Thorpe and Sean Braybrook, were, on 1 November 2002, declared elected to those positions.  There were 15 unsuccessful candidates. 

2. On 30 January 2003, Mr Troy Austin was elected as a Commissioner of the Victoria Zone of ATSIC.  That election created a vacancy in the office of Tumbukka Regional Councillor for the West Melbourne Ward of the Council which had been occupied by Mr Austin since the declaration on 1 November 2002.  As a result, pursuant to s 115A of the ATSIC Act, Ms Colleen Joyce Marion, one of the unsuccessful candidates, was appointed by the Minister for Immigration, Multicultural and Indigenous Affairs to fill the casual vacancy in the position formerly occupied by Mr Austin. 

3. Section 115A of the ATSIC Act provides:

   ‘(1)     This section applies to a Regional Council if:

   (a)one of its members who is a Regional Councillor for a ward is appointed under section 27 as a member of the Commission; and

   (b)there has not previously been an appointment under this section for the Regional Council during the current term of the Regional Council.

   (2)The Minister must appoint, as a member of the Regional Council, the person ascertained by applying the same rules as would apply to filling a casual vacancy in the ward.

   (3)A person appointed as a member of a Regional Council under this section holds office until the end of the next round of Regional Council elections following his or her appointment.’

4. On 17 November 2003, Mr Gavin Brown, who, it will be remembered, had been one of the successful candidates at the election declared on 1 November 2002, resigned his office.  That resignation created a casual vacancy which required to be filled pursuant to the ATSIC (Regional Council Election Casual Vacancies) Rules 1990 (“the casual vacancies rules”) and the ATSIC (Regional Council Election) Rules 1990.  The casual vacancies rules provided by rules 5 and 6;

   ‘5(1)    The returning officer must:

   (a)       notify each unsuccessful candidate in writing:

   (i)        that the vacancy exists;

   (ii)       that a recount is to be held to fill the vacancy, and

   (b)ask the unsuccessful candidate if he or she wants to have his or her name included in the recount;

   (c)state the address to which the unsuccessful candidate must forward the declaration under subrule 6(1); and

   (d)publish a notice in a newspaper which circulates in the relevant ward.

   (2)The notice under subrule (1) may be sent by pre-paid post, to the unsuccessful candidate:

   (a)at the address to which an objection to his or her enrolment must be sent, under section 116 of the Electoral Act or

   (b)if the unsuccessful candidate is no longer on a roll - at the address to which an objection would have had to be sent under section 116 of the Electoral Act on the last occasion on which he or she was enrolled. 

   (3)For the purposes of paragraph 5(1D) a notice published by the returning officer must state:

   (a)that the vacancy exists; and

   (b)the time and place that is fixed for the recount.

   6(1)If an unsuccessful candidate wants to have his or her name included in the recount, he or she must declare that:

   (a)he or she is qualified under section 102 of the act to be elected as a member for the relevant ward; and

   (b)he or she consents to act if elected;

   (2)      a declaration made under subrule (1) must be:

   (a)       in the approved form and,

   (b)signed by the unsuccessful candidate in the presence of an authorised witness;

   (3)a declaration made under this rule must be given or sent to the returning officer:

   (a)by hand

   (b)by post; or

   (c)by facsimile transmission.’

5. Schedule 1 to the casual vacancies rules provides for a recount involving distribution of the undistributed second and subsequent preferences of persons who had voted in the earlier election, including those cast for the former councillor - in this case Mr Brown - to be distributed between the unsuccessful candidates who had made declarations in accordance with rule 6 of the casual vacancies rules.  After that process, the declaring unsuccessful candidate who obtains an absolute majority of votes is to be declared elected to the casual vacancy.

6. In the present case, a completed declaration form was received from the respondent, Mr Leslie Bamblett.  However, a form had also been completed by Mr Ronald Johnson, another unsuccessful candidate, who returned it by facsimile to the address shown on the notification letter issued pursuant to rule 5 of the casual vacancy rules.  However, that address was incorrect because the notification letter gave the wrong facsimile number, 02 6271 4650 which was actually a telephone number for the Australian Electoral Commission.  As well, the notification letter gave a wrong postcode number of 2602 instead of 2604.  In the mistaken belief that Mr Bamblett was the only unsuccessful candidate who wanted to have his or her name included in the recount, the returning officer declared him elected to the casual vacancy.  However, had Mr Johnson’s declaration which had been completed been received by the returning officer, the application of the recount rules in Schedule 1 to the casual vacancies rules would have caused him, and not Mr Leslie Bamblett, to have been declared elected to fill the casual vacancy.

7. Schedule 4 to the ATSIC Act is made applicable to a disputed election by s 140 of the ATSIC Act, which provides:

   ‘The provisions of Schedule 4 apply where there is a dispute in relation to a Regional Council election, a TSRA election or a zone election.’

8. Clause 5(1) of Schedule 4 to the ATSIC Act provides:

   ‘The Electoral Commission is entitled to file an election petition disputing an election.’

9. The powers of this Court when trying an election petition include the following conferred by subclauses 10(1) and 10(3) of Schedule 4 to the ATSIC Act;

   ‘10(1)  ……

   (e)to declare that any person who was returned was not duly elected;

   (f)       to declare any candidate duly elected who was not returned;

   (g)      to declare the election absolutely void;

   …..

   (j)to make any order or give any direction that the Court thinks is necessary or convenient for the purpose of giving effect to any declaration or other decision of the Court in the proceedings.

   …..

   10(3)Without limiting the powers conferred by this clause, it is hereby declared that the power of the Court to declare that any person who was returned was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.’

   The expression “illegal practices” is defined in clause 1 of Schedule 4 to mean:

   ‘a contravention of this Act, the Regional Council election rules, the TSRA election rules or the zone election rules.’

10. In the present case I am satisfied that an illegal practice as defined has occurred in connection with the subject election, being a contravention of rule 5(1)(c) of the casual vacancies rules which required the notification to Mr Johnson to “state the address to which” he “must forward the declaration under subrule (6)(1)”.  That contravention resulted in the returning officer’s not receiving Mr Johnson's declaration.

11. Clause 12(3) of Schedule 4 to the ATSIC Act provides:

    ‘The Court shall not declare that any person returned was not duly elected, or declare any election void:

    (a)on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority; or

    (b)on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;

    Unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.’

12. In the present case I am satisfied that the result of the election was likely to have been affected by the contravention which I have just identified.  I am further satisfied that it is just that the election should be declared void.  Accordingly, I shall order in the terms sought by the petition that:

    1.The election of the respondent Leslie Bamblett be declared absolutely void.

    2.The returning officer be directed to fill the casual vacancy created by the resignation of Mr Gavin Brown in accordance with the Aboriginal and Torres Strait Islander Commission (Regional Council Election Casual Vacancies) Rules 1990.

13. I shall order, in addition, that liberty be reserved to the petitioner or to any person affected by this order to apply.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            11 June 2004

Counsel for the Applicant:	Mr G McCarthy
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	The respondent did not appear.
Date of Hearing:	11 June 2004
Date of Judgment:	11 June 2004