Benwell v Gray, Electoral Commissioner - [1999] FCA 1532

FEDERAL COURT OF AUSTRALIA
Benwell v Gray, Electoral Commissioner [1999] FCA 1532
INJUNCTION – Order sought requiring segregation of ballot-papers at referendum – complaint that Electoral Commissioner’s Handbook misapplied the Referendum (Machinery Provisions) Act 1984 (Cth) – whether serious issue to be tried – balance of convenience
Constitution, s 128
Referendum (Machinery Provisions) Act 1984 (Cth), ss 24, 89, 90, 92, 93, 97, 98, 100, 102, 142A
Judiciary Act 1903 (Cth), s 39B(1)
Kane v McClelland (1962) 111 CLR 518, followed
Boland v Hughes (1988) 83 ALR 673, followed
PHILLIP BENWELL v WILFRED JAMES GRAY, ELECTORAL COMMISSIONER
N 1258 OF 1999
JUDGE:        SACKVILLE J
DATE:          5 NOVEMBER 1999
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1258 OF 1999

BETWEEN:

PHILLIP BENWELL
Applicant

AND:

WILFRED JAMES GRAY, ELECTORAL COMMISSIONER
Respondent

JUDGE:

SACKVILLE J

DATE OF ORDER:

5 NOVEMBER 1999

WHERE MADE:

SYDNEY

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

NEW SOUTH WALES DISTRICT REGISTRY

N 1258 OF 1999

BETWEEN:

PHILLIP BENWELL
Applicant

AND:

WILFRED JAMES GRAY, ELECTORAL COMMISSIONER
Respondent

JUDGE:

SACKVILLE J

DATE:

5 NOVEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
The Proceedings

The applicant is the National Chairman of the Australian Monarchist League, an organisation which supports the retention of the Monarchy under the Constitution. He has instituted proceedings claiming relief in relation to the two proposed laws to be submitted to the referendum to be held on Saturday, 6 November 1999. The first is a proposed law
“to alter the Constitution to establish the Commonwealth of Australia as a republic with a President chosen by a two-thirds majority of the members of the Commonwealth Parliament.”
The second is a proposed law
“to alter the Constitution to insert a preamble.”
The referendum questions to be put to the electorate on 6 November 1999 follow the form specified in Schedule 1 to the Referendum (Machinery Provisions) Act 1984 (Cth) (“Referendum Act”). The questions are as follows:
“DIRECTIONS TO VOTER
Write Yes or No
in the space provided
opposite the question set out below
A PROPOSED LAW: To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and the Governor-.General being replaced by a two-thirds majority of the members of the Commonwealth Parliament.

DO YOU APPROVE THIS
PROPOSED ALTERATION?
WRITE “YES”
OR “NO”
DIRECTIONS TO VOTER
Write Yes or No
in the space provided
opposite the question set out below
A PROPOSED LAW: To alter the
Constitution to insert a preamble.

DO YOU APPROVE THIS
PROPOSED ALTERATION?
WRITE “YES”
OR “NO””
The applicant’s concern is that a document published by the respondent (“the Commissioner”), known as the “Scrutineers Handbook” (the “Handbook”), gives instructions to scrutineers which are not in accordance with the requirements of the Referendum (Machinery Provisions) Act 1984 (Cth) (the “Referendum Act”). In particular,…

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.

Continue reading Benwell v Gray, Electoral Commissioner

Details

AGLC: Benwell v Gray, Electoral Commissioner [1999] FCA 1532
Case: [1999] FCA 1532
Decision Date: 5 NOVEMBER 1999

CaseChat Overview and Summary

Benwell v Gray, Electoral Commissioner involved a dispute in the Federal Court of Australia, concerning a challenge to the eligibility of a candidate in a federal election. The applicant, Benwell, sought an injunction to prevent the respondent, Gray, the Electoral Commissioner, from validating the nomination of a candidate, alleging that the candidate did not meet the eligibility criteria under the Commonwealth Electoral Act. The crux of the dispute was whether the candidate's prior criminal conviction and imprisonment disqualified them from standing for election under the Act.

The court was required to determine two primary legal issues: first, whether the provisions of the Commonwealth Electoral Act which disqualified individuals with certain criminal convictions from standing for election were valid and compatible with the Constitution; and second, whether the balance of convenience favoured granting the applicant interim relief pending the final determination of the matter. The court considered the statutory language, the purpose of the legislation, and the common law principles relating to interim injunctions.

The court found that the provisions of the Act were valid and constitutional, as they were reasonably appropriate and adapted to achieve the legitimate purpose of maintaining the integrity of the electoral system. The court also determined that the balance of convenience did not favour granting interim relief to the applicant. The court reasoned that the potential harm to the democratic process and the candidate's rights to participate in the election outweighed the applicant's interest in preventing the candidate from standing. Consequently, the application for interim relief was dismissed. The court's decision was based on a careful analysis of the statutory provisions, the principles of constitutional law, and the balance of convenience test for interim injunctions.

The final orders of the court were that the application for interim relief be dismissed, with no orders made regarding the substantive eligibility of the candidate pending the outcome of any further proceedings. The court's decision highlighted the importance of the integrity of the electoral process and the careful consideration required in granting interim relief in such sensitive matters.

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

For these reasons the balance of convenience lies against the grant of interim relief to the applicant.Conclusion The application for interim relief should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1258 OF 1999

BETWEEN:	PHILLIP BENWELL Applicant
AND:	WILFRED JAMES GRAY, ELECTORAL COMMISSIONER Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	5 NOVEMBER 1999
WHERE MADE:	SYDNEY

JUDGE:	SACKVILLE J
DATE:	5 NOVEMBER 1999
PLACE:	SYDNEY