Australian Electoral Commission v Landy, B - [1994] FCA 1043

IN THE MATTER OF A DISPUTED ELECTION UNDER THE ABORIGINAL AND TORRES STRAIT
ISLANDER COMMISSION ACT 1989
AUSTRALIAN ELECTORAL COMMISSION v. BILLY LANDY, TEDDY BILJABU, ALLEN CHARLES,
COLIN PETERSON and KEN FARMER
No. WAG27 of 1994
FED No. 1043/94
Number of pages - 13
Elections
(1994) 54 FCR 440

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
LEE J

CATCHWORDS

Elections - Aboriginal and Torres Strait Islander Commission - Regional Council election - whether error of or omission by election officer did not affect the result of the election - whether just and sufficient to declare election void

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 4, 100, 100A, 101, 104, 106, 110, 111, 113, 140, 141; sub-ss 101(a), 105(1), 106(3), 107(2), 113(3); paras 101(b)(i), 101(b)(ii); sub-para 141(2)(a)(iii); Schedules 2, 4; cll 1, 10, 12, 14 (Schedule 4); sub-cll 3(e), 10(2), 10(3), 12(3), 14(1) (Schedule 4)

Commonwealth Electoral Act 1918 s.360
Regional Council Election Rules rr 2, 4, 25, 71, 73, 74, 76, 77, 78, 108, 130; sub-rr 73(4), 74(2), 76(1), 76(3), 78(3), 78(5), 92(2A); paras 71(9)(d), 92(4)(a), 92(2)(f)

Commonwealth of Australia Gazette
Australian Electoral Commission v. Gordon et al., Unreported (Federal Court of Australia, 5 September 1994)
Australian Electoral Commission v. Lalara et al., Unreported (Federal Court of Australia, 27 September 1994)
Australian Electoral Commission v. Towney et al., Unreported (Federal Court of Australia, 22 June 1994)
Bridge v. Bowen (1916) 21 CLR 582
Hudson v. Lee (1993) 177 CLR 627
Kean v. Kerby (1920) 27 CLR 449
Sykes v. Australian Electoral Commission (1993) 67 ALJR 714
WASAGA v. Tahal (1991) 33 FCR 438

HEARING

PERTH, 4 August 1994
#DATE 22:12:1994

Counsel for the Petitioner: J.D. Allanson

Solicitor for the Petitioner: Australian Government Solicitor

Counsel for the First, Second, P.J. Vincent
Third, Fourth and Fifth Respondents:

Solicitors for the Respondent: Newton Vincent

ORDER

THE COURT ORDERS AND DECLARES THAT:

1. Each respondent was not duly elected.

2. The election held on 4 December 1994 for the Western Desert ward of the Warburton region is absolutely void.

3. The petitioner pay the costs of the respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

LEE J This is a petition filed pursuant to s.140 and Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the Act") in which the Australian Electoral Commission ("the petitioner") seeks, inter alia, a declaration that a Regional Council election held under the Act, namely, the election of five Regional Council members for the Western Desert ward of the Warburton region, is absolutely void.

Section 100 of the Act provides that Regional Council elections are to be conducted by the petitioner in accordance with the provisions of the Act and the Regional Council election rules ("the rules") made under s.113 of the Act. The rules, pursuant to s.100A of the Act, divide the Warburton region into three wards and fix at five the number 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: [1994] FCA 1043
Decision Date: 22 DECEMBER 1994

CaseChat Overview and Summary

In the case of Australian Electoral Commission v Landy, the plaintiffs, the Australian Electoral Commission, sought to have a regional council election declared void due to alleged irregularities. The respondents, Landy and others, were individuals who had been elected in the disputed election held on 4 December 1994 for the Western Desert ward of the Warburton region. The matter was heard in the Federal Court of Australia. The central dispute was whether an error or omission by the election officer had affected the result of the election to such an extent that it was just and sufficient to declare the election void.

The legal issues before the court were whether the error or omission by the election officer was significant enough to impact the election's outcome, and if so, whether it was just and sufficient to declare the election void. The court had to consider the impact of the alleged errors on the overall fairness and integrity of the electoral process, as well as whether the errors could be rectified or if the election needed to be re-run. Additionally, the court had to assess whether the error or omission materially affected the result of the election and whether the error was of a kind that could potentially lead to a different outcome.

The court found that there were indeed errors and omissions by the election officer, which included the failure to follow certain electoral procedures. The court determined that these errors did not affect the result of the election. However, the court concluded that these errors were of a kind that could potentially lead to a different outcome and that it was just and sufficient to declare the election void. The court emphasised the importance of following electoral procedures to ensure the integrity of the electoral process. Ultimately, the court ordered that the election held on 4 December 1994 for the Western Desert ward of the Warburton region was absolutely void and that each respondent was not duly elected. The petitioner was ordered to pay the costs of the respondents.

Orders

Orders of the court

THE COURT ORDERS AND DECLARES THAT:

1. Each respondent was not duly elected.

2. The election held on 4 December 1994 for the Western Desert ward of the Warburton region is absolutely void.

3. The petitioner pay the costs of the respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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