Cumming v Victorian Electoral Commission
[2022] VSC 671
•31 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT
S ECI 2022 04403
| CATHERINE REBECCA CUMMING | Plaintiff |
| v | |
| VICTORIAN ELECTORAL COMMISSION | Defendant |
---
JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 October 2022 |
DATE OF RULING: | 31 October 2022 |
CASE MAY BE CITED AS: | Cumming v Victorian Electoral Commission |
MEDIUM NEUTRAL CITATION: | [2022] VSC 671 |
---
ELECTIONS – Parliament – Application for registration of a political party – Whether ‘eligible political party’ – Whether the Victorian Electoral Commission is entitled to inform itself as to the number of eligible members of the applicant party – Whether interlocutory mandatory injunction or order of mandamus should be granted – Application refused – Electoral Act 2002 (Vic) ss 3, 8(1), 8(2), 9(1), 9(2), 45, 50(1).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Langmead | Oakley Thompson & Co |
| For the Defendant | Mr L Brown with Ms A Wharldall | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
This is an application for an interlocutory mandatory injunction or for an order of mandamus made by Ms Catherine Cumming, a Member of Parliament, who is a founding member of the Independence Party. She is also the secretary and registered officer of that party. The Independence Party was established on 1 July 2022.[1]
[1]These reasons were delivered orally in the Practice Court on 31 October 2022.
The application is brought against the Victorian Electoral Commission (‘Commission’) as a matter of urgency at very short notice as today, 31 October 2022, is the last day for registration of a political party before the State election on 26 November 2022. Because of the very short notice of the application, it has not been possible for the Commission to provide an affidavit or written submissions in response to the application.
Relevant facts
In an affidavit filed 31 October 2022, the plaintiff deposes that by 19 July 2022, almost 500 membership applications had been received for the Independence Party, predominantly by completing an online application form available on the Independence Party’s website. By 24 July 2022, the membership applications had been checked against the electoral roll.
The plaintiff also deposes that on 28 July 2022, she lodged an application for the Independence Party to be registered as a Victorian political party pursuant to s 45 of the Electoral Act2002 (Vic) (‘the Act’).
The application was accompanied by a statutory declaration by the plaintiff as secretary of the Independence Party in accordance with s 45(2)(e) of the Act and a list of the names and addresses of 550 members of the party. It was also accompanied by a copy of the constitution of the Independence Party and the prescribed fee.
In August 2022, the Commission mailed a form to party members on the list provided to the Commission for completion in order to verify that they were electors and members of the Independence Party. The form was to be returned by reply paid envelope to the Commission. On 8 September 2022, the Commission advised the plaintiff that it had received 244 positive responses for membership of the Independence Party. As this was less than the minimum requirement of 500 positive member responses, the Commission invited submission of a supplementary list of new names and advised that the Independence Party would need to provide 256 more positive responses to meet the requirements and continue with the registration process.
On 28 October 2022, Mr Warwick Gately, the Electoral Commissioner advised Ms Cumming that only 390 positive responses had been received by the Commission. This was again less than the 500 required to show that the Independence Party had enough members to be eligible for registration.
In her affidavit, the plaintiff disputes the Electoral Commissioner’s statement that the Commission had written to all the people on the lists that were provided. She suspects that an error may have been made by the Commission or by Australia Post. She also disputes that there were only 390 positive responses, contending that there were at least 430 positive responses. This was still less than the necessary 500 members required for an eligible political party.
The plaintiff now deposes that the record of members of the Independence Party shows that it has 817 members on the electoral roll.
Functions of the Commission
I will now briefly summarise the relevant functions of the Commission under the Act, starting with its general powers in relation to elections. Under s 8(1) of the Act, the Commission is responsible for the administration of the enrolment process, the conduct of parliamentary elections and referendums in Victoria. Under s 8(2) of the Act, the Commission is to perform the functions conferred on the Commission by the Act or any other Act except for functions conferred on a specified person or officeholder.
Under s 9(1), subject to the Act, the Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its responsibilities and functions. Section 9(2) provides that the Commission may, subject to the Act, make and issue directions for or with respect to the enrolment process, elections and election procedures.
The expression ‘eligible political party’ is defined in s 3 of the Act to mean a political party that is established on the basis of a written constitution (however described) that sets out the aims of the party and has at least 500 members who are–
(a)electors; and
(b)members in accordance with the rules of the political party; and
(c)are not members of another registered political party or of a political party applying for registration.
Relevant power
The relevant power of the Commission is s 50(1)(a) of the Act. It provides in substance that if the Commission determines that a political party that has applied for registration may be registered, the Commission must register the political party.
The only authority in Victoria as to the proper construction of s 50(1) of the Act, is the decision of Judge Hampel sitting in the Victorian Civil and Administrative Tribunal in Millington v Victorian Electoral Commission (Review and Regulation).[2]
[2][2018] VCAT 1661 (‘Millington’).
In this decision, her Honour said:
Section 50 requires the Commission to ‘determine’ a party may be registered, or should not be registered. The word ‘determines’ must be given meaning. It clearly requires the Commission itself to arrive at the necessary level of satisfaction that the party meets, or does not meet, the definition of eligible political party.[3]
[3]Ibid [44].
Later her Honour said:
The Commission is obliged to satisfy itself an applicant party is entitled to be registered. It is entitled to adopt its own processes to do so. Its processes enabled all applicants to be treated consistently. The processes provided independent verification of the information provided by the applicant, relating to the matters of which the Commission had to be satisfied in order to make its determination.[4]
[4]Ibid [60].
I agree with her Honour’s construction of s 50(1) of the Act. It requires the Commission to be satisfied that a political party that has sought registration meets the requirements of the Act and, in particular, complies with the definition of ‘eligible political party’ in s 3.
Section 50(1) provides a public safeguard by calling on the Commission to determine that a political party that has applied for registration can be registered. This requires the Commission to satisfy itself that the provisions of the Act relating to the registration of a political party have been met. This step is a protection against, for example, the submission of the names of persons who are not electors, or fictitious names, or the names of persons who have not in fact consented to be members of the political party seeking registration, or who are members of another political party or party seeking registration.
The plaintiff submitted that the Commission should simply act on the basis of the material submitted under s 45 of the Act. In my view, this is not correct and the correct position is that stated by her Honour in the Millington decision.
Under s 50(1), the Commission must determine that a political party that has applied for registration may be registered in accordance with the Act. In the present case, the Commission is not satisfied that the Independence Party has the necessary 500 members with the result that registration has been refused.
Remedies
It is open for the plaintiff to seek judicial review of the Commission’s decision by seeking an order for certiorari quashing the Commission’s decision, and an order for mandamus directing the Commission to register the Independence Party.
Such an application cannot however proceed to final determination unless the parties have been afforded procedural fairness and a full hearing. It is simply not possible for this to be done today. It would be unjust and unfair for the Court to form a concluded view without having provided the Commission with the opportunity to file affidavits and present a full case.
Conclusion
I am not satisfied that the plaintiff has shown that there is a serious issue to be tried either as to the proper construction of s 50(1) of the Act or on the facts stated in the plaintiff’s affidavit. I am not satisfied that it is appropriate to grant what is tantamount to final relief in the proceeding today.
Accordingly I will dismiss the plaintiff's summons filed 31 October 2022.
0
0
0