Blurton, M. v Australian Electoral Commission

[1992] FCA 621

Re: MICHAEL BLURTON; FRED COLLARD; GWEN CORRUNNA; LEN COLBUNG; DENNIS
EGGINGTON; TERRENCE GARLETT; ROBERT ISAACS; JOHN KALIN; JOHN MCQUIRE; JIM
MORRISON; FRANK NANNUP; NEIL PHILLIPS; SPENCER RILEY; JACK WALLEY; ADRIAN
SMITH; LAUREL WINDER; and WILLIAM JOSEPH YARRAN
And: THE AUSTRALIAN ELECTORAL COMMISSION
No. WA G90 of 1992
FED No. 621
Aborgines

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Aborigines - Aboriginal and Torres Strait Islander Commission - Regional Council election - failure to satisfy secret ballot requirement - election declared void - subsequent directions by Court as to procedure for fresh election - application for interlocutory injunction restraining conduct of new election - apprehension that new election will again not satisfy secret ballot requirement - collateral challenge to court order - principles for grant of interlocutory relief - issue of voter perception - no prospect of success of application - claim for interlocutory relief dismissed.

Aboriginal and Torres Strait Islander Commission Act 1989

HEARING

PERTH

#DATE 7:8:1992

Counsel for the Applicants: Dr J. Cameron

Solicitors for the Applicants: Aboriginal Legal Service

Counsel for the Respondent: Mr P. Thompson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

The claim for interlocutory relief is dismissed.

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

JUDGE1

On 3 November 1990 elections were held for regional councils throughout Australia established under the Aboriginal and Torres Strait Islander Commission Act 1989. One of those was the Perth regional council, in respect of which there were twenty vacancies to be filled and 48 candidates. Voting in that election was carried out pursuant to Regional Council Election Rules made by the Minister under s.113(1) of the Act. William Joseph Yarran, an unsuccessful candidate, filed a petition under Schedule 4 of the Act on 14 January 1991 seeking an order that the election be declared absolutely void on grounds which included a ground that the names and addresses of voters were required to be endorsed upon voter registration card envelopes in which voters were required to place their ballot papers in breach of the secret ballot requirement of s.109 of the Act. There were related proceedings in the Court arising out of the election involving the Australian Electoral Commission. Pending the conclusion of those proceedings the hearing of the petition was deferred but ultimately it came on for trial before me on 22 April 1992. On 11 May 1992, the following orders were made:

"1. It be declared that the Regional Council Election Rules made on 9 July 1990 which were in force at the time of the election for the Perth Regional Council did not provide for voting to be by secret ballot as required by s.109 of the Aboriginal and Torres Strait Islander Commission Act 1989;

2. The election for the Perth Regional Council conducted under the Aboriginal and Torres Strait Islander Commission Act 1989 on 3 November 1990 is declared void.

3. There be liberty to the parties to apply within fourteen (14) days for further orders and on the question of the costs of the petition."

1. It is unnecessary to traverse the reasons for that judgment in detail. The central finding appeared at p 33:
   

"The system of voting adopted by the Regional Council Election Rules provides for physical isolation of the elector at the point at which the vote is cast. It does not, however, keep separate the record of the vote cast from information about the identity of the voter. The ballot paper is sealed in an envelope bearing the voter's name and address. Separation occurs when the ballot paper is taken out of the envelope for scrutiny. In the meantime, however, the elector is required, after having cast a vote, to leave in the hands of a third party information about his or her identity and the vote that was cast. In my opinion and with great respect to the contrary view expressed by Olney J., this is not a secret ballot. The voter is entitled to the security provided by keeping separate the record of the vote and the record of his or her identity. It might be argued that that requirement could be met by placing the ballot paper in an unmarked sealed envelope which could then be placed in an envelope bearing the elector's name. That method, however, is less than satisfactory if only because of the perceptions it might engender. I would be prepared to accept that in conjunction with an appropriate system for separation of voter identity and voting decision, it might amount to a secret ballot. It is, however, neither necessary nor desirable that I express any concluded view on hypothetical alternatives to the system under consideration."

1. Subsequently the parties made submissions on the further orders that they sought pursuant to the order granting liberty to apply. These were heard on 27 May 1992 and judgment was delivered in respect of them on 3 June 1992. In the course of the submissions the Australian Electoral Commission informed the Court that the Minister had determined under r.130 of the Regional Council Election Rules that a further election should be held for the Perth regional council. The Rules had been resubmitted to both Houses of Parliament on 15 November 1990 to comply with the tabling procedures which were a condition of their validity. I was therefore entitled to regard them as valid except in so far as they provide for a system of voting that did not constitute a secret ballot. The reasons for judgment on 3 June noted that:
   

"The second respondent (the Commission) seeks an order to regulate the conduct of the proposed fresh election. It proposes that the new election should be undertaken using procedures whereby the content of the voter card envelope no longer appear directly on the envelope containing the ballot paper. The voter information is to be recorded on the counterfoil attached to the ballot paper envelope."

The Commission sought directions to implement that system for the purposes of the fresh election. In particular it sought orders:

"That the fresh election to be conducted for the Perth Regional Council in accordance with the Minister's determination pursuant to Rule 130 of the Regional Council Election Rules made pursuant to the Aboriginal and Torres Strait Islander Commission Act 1989 be conducted on the basis that after compliance with Rule 92(4)(A) the officer shall:

(i) Tear off the declaration from the envelope containing the ballot paper;

(ii) Place the envelope containing the ballot paper in the ballot box;

(iii) Retain the declarations into alphabetical order for any future reference;

(iv) Total the number of declarations in the count and record the number on a result slip."

The effect of the procedure proposed was that each voter would complete a declaration containing his or her name and address which would be printed on a counterfoil attached to the envelope containing the ballot paper. Prior to counting the declaration would be detached from that envelope which would be replaced unopened into the ballot box. The opening of the envelopes containing the ballot papers and the counting of them would proceed subsequently. In some respects the procedure is analogous to that in which a ballot paper is sealed inside an unmarked envelope which is in turn placed in an envelope bearing a voter's declaration. The method was perhaps less than satisfactory because of the perceptions it might engender. But, as I observed then, in combination with an appropriate system for the separation of voter identity and voting intention, it could amount to a secret ballot.

1. I held in my reasons for judgment on 3 June that the system proposed did answer the description of a secret ballot in law, although voters might perceive it to be otherwise when they handed in their envelopes. It would be a matter for the relevant electoral officers to make clear to voters that the counterfoils would be detached and the envelopes containing the ballot papers returned to the ballot box before it is opened and before counting commences. I also suggested that an endorsement on the envelope to that effect might be helpful.

2. The power to make the orders sought by the Commission derived from cl.10(1)(j) of Schedule 4 to the Aboriginal and Torres Strait Islander Commission Act which authorises the Court in trying an election petition:
   

"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."

A submission made by counsel for the petitioner that the order that was sought was in the nature of an amendment to the Regional Election Rules was rejected. The Rules had not provided for a secret ballot as required by law and I took the view that for the purposes of the election and in the exercise of the powers conferred upon the Court by cl.10(1)(j), the order sought could be made and I did make that order in the terms which I have already outlined in this judgment.

1. On 26 June there was published in the Commonwealth of Australia Gazette, a notice by the Minister for Aboriginal and Torres Strait Islander Affairs in the following terms:
   

"I, Robert Edward Tickner, Minister of State for Aboriginal and Torres Strait Islander Affairs, under subsection 104(2) of the Aboriginal and Torres Strait Islander Commission Act 1989 and Rule 130(2) of the Regional Council Election Rules, hereby fix Saturday 22 August 1992 as the day for polling in the election of the Regional Council for the region including Perth."

At the same time there was also published a notice of an estimate by the Minister that 6,753 persons would be entitled to vote at the election of the regional council fo the region including Perth, and that some 12,541 persons live in that region who are Aboriginal persons or Torres Strait Islanders.

1. On 7 July a solicitor, the Principal Legal Officer with the Aboriginal Legal Service of Western Australia, wrote to the Australian Electoral Commission in Canberra in the following terms:
   

"Dear Sir,

re Karlkarniny Regional Council Elections. I have been instructed by a majority of the former councillors of the Karlkarniny Regional Council to draw to your attention their concern about the elections to the regional council, proposed to be held on 28 August 1992. It appears that:

1. that a proposal to conduct the elections in accordance with the order made by French J. would breach the express provisions of the Act relating to the rule making power and the conduct of the elections and would accordingly be unlawful;

2. that even if the rule-making power has not been breached, the proposed procedure still does not satisfy the requirement of the Act, that elections be conducted by way of secret ballot;

3. that on either of these grounds any elections held in the manner apparently proposed could again be the subject of an electoral petition, or electoral petitions, which would further impede the effective running of the affairs of the Council.

The only safe manner in which to proceed would seem to require setting up a separate roll for the holding of Aboriginal and Torres Strait Islander Commission elections.

I ask that you give these concerns immediate consideration and advise me within 7 days of the date of this letter, whether you are prepared to meet them and of any alternative proposals. If acceptable proposals are not received, I am instructed to file further proceedings in the Federal Court without further notice."

A letter was sent by the Electoral Commission on 14 July directed to the Aboriginal Legal Service of Western Australia in the following terms:

"I refer to your facsimile letter of 7 July 1992 detailing concerns about the election to the Perth Karlkarniny Regional Council election to be held on 22 August 1992.

The election will be conducted under the existing provisions of the Aboriginal and Torres Strait Islander Commission Act 1989 and Regional Council Election Rules, in accordance with the Court order of 3 June 1992.

The Australian Electoral Commission is legally obliged to conduct the election as ordered by the Court."

1. On 22 July an application was filed in this Court in which the applicants claimed against the Australian Electoral Commission an injunction restraining the respondent from conducting elections proposed to be held on 22 August 1992 of the Karlkarniny Perth Regional Council of the Aboriginal and Torres Strait Islander Commission other than by way of secret ballot and directing the respondent to conduct the elections in strict compliance with the provisions of s.100 of the Aboriginal and Torres Strait Islander Commission Act. The applicant claims by way of interlocutory relief:
   

"An interlocutory injunction restraining the Respondent from proceeding with the said elections pending the final determination of this Court."

1. The claim for interlocutory relief came on for hearing today. It was supported by two affidavits; one of Mr Leonard Noel Culbong, who is an applicant. Mr Culbong says that, in the elections held on 3 November he was elected to the Perth regional council which subsequently adopted the name Karlkarniny regional council. Following the elections he became aware of concerns voiced in the community that electors had been required to write their names and addresses on the envelope on which they had to place their completed ballot papers, and that it was being claimed in some regions of Western Australia that it was known how some individuals had voted. He sought advice from the Aboriginal Legal Service and subsequently instructed it to challenge the Perth Regional Council election. It was seen as a test case since the electoral procedure followed in Perth was laid down by the Regional Council Election Rules and had been followed throughout this State and presumably throughout Australia. He was advised, he says, that it was probably not appropriate for successful candidates to challenge the election, as they would be the other parties to the petition which accordingly was lodged in the name of William Yarran, an unsuccessful candidate. He supported the petitioner with others and filed a statement expressing that support. None of the members of the Regional Council took any step to oppose the electoral petition. It was opposed only by the Commission which had been responsible for the conduct of the election.

2. On 11 May Mr Culbong learned that the petition had been successful and the election declared void, but subsequently found that the Commission had sought directions from the Court as to the conduct of the elections to be held to replace members of the Regional Council moved by the petition and that directions as sought had been set out in an order of the Court made on 3 June. He says he has read that order and had its apparent effect explained to him. Having considered the matter, he did not consider, and still does not consider, that an election conducted in accordance with the order would be secret or perceived by electors as being secret. He met with other members of what he calls "the deposed Regional Council" and found that a substantial number shared his concerns. He later learned that 22 August had been set as polling day for the fresh election. He and other former members of the Regional Council instructed the Legal Service to raise their concerns with the Australian Electoral Commission, the Aboriginal and Torres Strait Islander Commission and the Minister for Aboriginal Affairs and that was done by the letter to which I have referred.

3. Mr Culbong is still of the view that the ballot will again not be secret, that it is likely that the proposed election will again be challenged, that such a protracted challenge would seriously interfere with the representation of Aboriginal Western Australians in the region and that candidates would be put to unnecessary expense and inconvenience in contesting an election likely to be set aside as being in breach of the Aboriginal and Torres Strait Islander Commission Act. He has therefore joined with others in bringing the present proceedings. He sees no reason why there cannot be electoral rolls for the conduct of Regional Council elections similar to those which exist for parliamentary elections. The secrecy of the ballot which is of considerable importance in the relatively small and close-knit Aboriginal community could then be seen to be safeguarded.

4. Mr Neil Phillips also swore an affidavit. He was one of those elected to the Council in the November 1990 elections and subsequently as Zone Representative and a Commissioner of the Aboriginal and Torres Strait Islander Commission. He remained a Commissioner until the November elections were declared void in May. He was a respondent to the election petition brought by Mr Yarran. In common with other respondents he took no step in the proceedings until such time as the election was held to have been void. He shared the concerns of the petitioner as to the secrecy of the ballot. Following the declaration of the invalidity of the elections, there were a number of meetings of members of the former Regional Council. He attended all of those. Following the appointment of an administrator by the Minister for Aboriginal Affairs he and other members of the former council, including the present applicants, were appointed as advisers to the administrator, in which capacity he attended a further series of meetings.

5. Mr Phillips recalls no discussion as to the manner in which a further election to replace former councillors would be held. He did not recall any representative of the Commission discussing this at any of those meetings and was not aware of any such discussion having been held with the Aboriginal and Torres Strait Islander Commission itself. He says there was no discussion with former members of the Regional Council as to the content of the minute of proposed orders handed up at the hearing on 22 May and upon which the order of the court as to the conduct of fresh elections was based. He was not aware of any discussion of that minute with the Commission and he had no discussion of it with his Council. His views on it were not sought. None of the election materials which he has seen mentions the secrecy of the ballot by which the fresh election is to be held. He annexed to his affidavit a copy of the Regional Council Election Guide which makes no express reference to the procedures whereby secrecy of the ballot would be guaranteed.

6. The applicants in the present proceedings have been nominated as candidates for the fresh elections and it appears from Mr Phillips' affidavit that nearly 50 nominations were received at the close of nominations. Other candidates support the present proceedings. Like Mr Culbong, Mr Phillips favours the setting up of a separate roll of the conduct of Aboriginal and Torres Strait Islander Commission elections and he is aware that a number of other Aboriginal Australians share his view. He could see no valid objection to the setting up of such a roll.

1. There was also before the Court an affidavit sworn by Mr MacDonald, who is employed as a returning officer by the Australian Electoral Commission. He is the returning officer responsible for the Perth Karlkarniny Regional Council election which is to be held on 22 August. He says there are in fact 49 candidates but they do not include the applicants, Fred Collard, John McQuire and Frank Nannup. The new form of voter card envelope with a tear-off counterfoil is to be used for the election, and is in the style approved by the order of 3 June 1992. Exhibited to his affidavit is a sample of the voter card envelope. The scrutiny of the votes will include the procedures laid down in the order of 3 June 1992 and will involve the counterfoil declaration card being separated from the envelope and removed from the area before ballot papers are removed from their envelopes. He says it will cost about $45,000 to hold the election and that $20,000 has already been expended in relation to printing, advertising and freight. As to that, I note that the electoral timetable which appears at the back of the election guide exhibited to Mr Phillips' affidavit, sets out the following dates:
   

Gazettal of notice fixing day of polling Friday, 26 June 1992 Nominations open Friday, 26 June 1992 Close of Nominations Midday Friday 24 July 1992 Candidate photos to be received by Midday, Sunday, 26 July 1992 Commence postal voting Wednesday, 29 July 1992 Close of Electoral Roles Saturday, 25 July 1992 Commence Mobile Polling Monday, 17 August 1992 Polling Day 8 am to 6 pm Saturday, 22 August 1992

1. In addition to the evidence to which I have referred, none of which really appears to be disputed on the facts, there is a letter which was tendered by consent from the Australian Electoral Commission to the Australian Government Solicitor. The letter says, inter alia:
   

"The Australian Electoral Commission intended to have the issue of a secret ballot addressed at polling places to overcome Justice French's concern that "the system proposed will answer the description of a secret ballot in law, although voters might perceive it otherwise when they hand in their envelopes". It was intended for the "relevant electoral officers", namely the issuing officers, to inform voters of the procedures to be used to ensure the secrecy of their vote.

This course of action was deemed most effective as voters at polling places would be advised individually. All relevant polling staff will be trained in the election procedures prior to polling day.

However, as Justice French observed it might be helpful for there to be an endorsement on the envelope, the Australian Electoral Commission will undertake to stamp the envelopes with the words: "SECRET BALLOT: this envelope will be separated from the form containing your personal particulars and placed with all other envelopes before the envelopes are opened and counted"."

1. The claim for interlocutory relief must establish both a triable case and that the balance of convenience favours the grant of interlocutory relief. In my opinion, it fails at the threshold. It is, as the respondent has pointed out, a collateral attack on the order made on 3 June 1992. It seeks from the Court in effect a restraint based upon the proposition that that order is either ultra vires or inconsistent with a requirement of the Aboriginal and Torres Strait Islander Commission Act that elections should be conducted for regional councils by way of a secret ballot. I have already held, in making the directions that I did on 3 June 1992, that the procedure proposed will satisfy the requirements of the Act. I do not propose now to retrace the reasons by which that conclusion was arrived at.

2. The issue of voter perception is, of course, an important one but it does not affect the legal characterisation of the procedure as one which answers the description of a secret ballot in law. This issue, which I think underlies the concerns of the applicants in this case, is one which could, as a number of them suggest, be answered by the creation of a separate electoral roll so that the issue of qualifications for persons to vote could be resolved in advance of the election itself and avoiding the necessity for the sort of system that has been adopted in this case. But that, I think, is a matter that the appropriate people, and no doubt the Aboriginal and Torres Strait Islander Commission itself, can take up with the Minister. If it is the view of Aboriginal communities throughout Australia that there should be a separate roll then it may well be the case that the arguments against its creation expressed in the Minister's Second Reading Speech, may be overcome. But for the present, the system, for the reasons I earlier expressed, answers the requirements of the law albeit it may not be the most desirable way of doing so. This application I think has really no prospect of success and on that basis I do not propose to allow the claim for interlocutory relief. The claim for interlocutory relief is dismissed.