Ditchburn v Divisional Returning Officer (Qld) - [1999] HCA 41

HIGH COURT OF AUSTRALIA

HAYNE J

DONALD KENNETH DITCHBURN PETITIONER

AND

THE DIVISIONAL RETURNING OFFICER
FOR HERBERT RESPONDENT

Ditchburn v Divisonal Returning Officer [1999] HCA 41
22 July 1999
B50/1998

ORDER

Petition dismissed.

Petitioner to pay costs of respondent and of Australian Electoral Commission.

Representation:

Petitioner appeared in person

S J Gageler for the respondent and for the Australian Electoral Commission (instructed by Australian Government Solicitor)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ditchburn v Divisional Returning Officer

Elections – House of Representatives – Court of Disputed Returns – Petition disputing validity of House of Representatives election – Whether preferential voting system constitutes plural voting – Whether members "directly chosen by the people".

The Constitution, ss 7, 24, 30.
Commonwealth Electoral Act 1918 (Cth), ss 240, 274.

HAYNE J. On 7 December 1998, Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). The petition was said to concern "the election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998". It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998.
The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard. It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out. It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court.
As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today[1], no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear, be represented and heard on the petition. Again, however, I need form no view on whether the respondent named in the petition was "improperly joined" within the meaning of O 16 r 4 of the Rules.
[1]Ditchburn v Australian Electoral Officer for Queensland [1999] HCA 40.
The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be "directly chosen by the people" and s 30 of the Constitution that "in the choosing of members each elector shall vote only once". In particular he alleges that ss 240(1)(b), 240(2), 274(7)(d), 274(7AA), 274(7AB) and…

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] HCA 41
Decision Date: 22 July 1999

CaseChat Overview and Summary

The case of *Ditchburn v Divisional Returning Officer (Qld)* concerned a petition brought before Hayne J in the Court of Disputed Returns, challenging the validity of an election for the House of Representatives. The petitioner, Ditchburn, disputed the election's outcome, raising fundamental questions about the nature of the Australian electoral system.

The central legal issues before the Court were whether the preferential voting system employed in federal elections constituted plural voting, and consequently, whether members of the House of Representatives were "directly chosen by the people" as required by the Australian Constitution. The petitioner argued that the preferential system, by allowing voters to express preferences beyond their first choice, effectively granted some voters more influence than others, thereby undermining the principle of one vote, one value.

Hayne J dismissed the petition, finding that the preferential voting system does not amount to plural voting. His Honour reasoned that each elector is entitled to cast only one vote, and that vote is counted according to the voter's expressed preferences. The Court held that the preferential system is a method of ensuring that the candidate elected has the support of a majority of voters, and that this method is consistent with the constitutional requirement that members of the House of Representatives be "directly chosen by the people". The Court concluded that the preferential system is a valid means of achieving direct choice by the electorate.

Consequently, the petition was dismissed, and the petitioner was ordered to pay the costs of the respondent and the Australian Electoral Commission.

Orders

Orders of the court

Petition dismissed.

Petitioner to pay costs of respondent and of Australian Electoral Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HAYNE J

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Ratio Decidendi

Legal Principle Established

Established by: HAYNE J

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