Ditchburn v Divisional Returning Officer for Herbert - [1999] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Brisbane No B50 of 1998

B e t w e e n -
DONALD KENNETH DITCHBURN
Petitioner
and
THE DIVISIONAL RETURNING OFFICER FOR HERBERT

Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 22 JULY 1999, AT 10.39 AM

HIS HONOUR: Well now, the second of the petitions, Mr Gageler: Ditchburn v The Divisional Returning Officer for Herbert, you again appear and Mr Ditchburn appears in person. Do you again apply for leave to be heard on behalf of the Commission?

MR S.J. GAGELER: I do. (instructed by the Australian Government Solicitor).

HIS HONOUR: Yes. Again, Mr Ditchburn, is there any reason not to give Mr Gageler leave to appear on behalf of the Commission and to make submissions?

MR DITCHBURN: None, your Honour.

HIS HONOUR: Yes. Well, you have that leave, Mr Gageler. Yes, Mr Gageler.

MR G AGELER: Your Honour, the substance of this petition is an attack on the validity of the system of preferential voting for the House of Representatives. In substance, it raises no issue of principle different from that which has already been addressed in relation to the other petition. However, in relation to the validity of section 240 of the Act which is directly called into question in this case, it must be pointed out that that was something addressed squarely by all members of the Court in the Full Court decision in Langer v The Commonwealth 186 CLR 302. What was in issue in that case was the validity of another section, section 329A, but in addressing that question of validity, all members of the Court also addressed the validity of section 240 and all members of the Court, including Justice Dawson who dissented on the validity of section 329A, accepted section 240 as being valid. May I give your Honour the page references?

HIS HONOUR: Please.

MR G AGELER: In the judgment of the Chief Justice, at page 316 to 317. It is quite a lengthy passage. It begins at the top of page 316 in the paragraph referring back to Judd v McKeon and continues over to the foot of page 317. Then in Justice Dawson’s judgment at the bottom of page 323 ‑ as I said, his Honour dissented in relation to the provision in issue, section 329A, but at the bottom of section 323 his Honour said, in the last three lines, that:

the provision in s 240 for a preferential voting system is clearly within power notwithstanding that it requires a choice to be made in a specified manner –

Then in the joint judgment of Justices Toohey and Gaudron, at page 333, about point 2, the sentence beginning, “In this context”:

and no matter how broadly the words “chosen by the people” are construed, there is nothing to support the view that members…

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: [1999] HCATrans 206
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Ditchburn, sought a declaration that he was entitled to be enrolled as a voter in the Division of Herbert for the purposes of the federal election. The respondent was the Divisional Returning Officer for Herbert. The dispute concerned Mr. Ditchburn's eligibility to be enrolled, specifically whether he met the residency requirements stipulated by the *Commonwealth Electoral Act 1918* (Cth).

The central legal issue before Hayne J was whether Mr. Ditchburn had established the necessary period of continuous residence within the Division of Herbert to qualify for enrolment. The Act required an elector to have been an inhabitant of Australia for at least six months and to have lived in a particular division for at least one month. Mr. Ditchburn contended that his circumstances satisfied these criteria, while the Divisional Returning Officer had determined otherwise.

Hayne J considered the evidence regarding Mr. Ditchburn's movements and living arrangements. His Honour applied the principles of statutory interpretation to the relevant provisions of the *Commonwealth Electoral Act 1918* (Cth), focusing on the meaning of "inhabitant" and "lived" in the context of electoral enrolment. The court examined whether Mr. Ditchburn's temporary absences from the Division of Herbert, and his periods of residence elsewhere, interrupted the continuity of his habitation within the Division for the required period.

The court found that Mr. Ditchburn had not satisfied the one-month continuous residence requirement within the Division of Herbert. Accordingly, his application for a declaration that he was entitled to be enrolled was dismissed.

Orders