Fittler v NSW Electoral Commission

[2007] NSWADT 136

CITATION:	Fittler v NSW Electoral Commission and anor [2007] NSWADT 136 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Darren Fittler FIRST RESPONDENT NSW Electoral Commission SECOND RESPONDENT Randwick City Council
FILE NUMBER:	061075
HEARING DATES:	28 May 2007
SUBMISSIONS CLOSED:	28 May 2007
EXTEMPORE DECISION DATE:	28 May 2007
DATE OF DECISION:	20 June 2007
BEFORE:	Rice S - Judicial Member
CATCHWORDS:	Dismissal of complaint - for any other reason
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Local Government (Elections) Regulation 1998 Local Government Act 1993
CASES CITED:	Lavery v Commissioner of Fire Brigades [2003] ADT 93 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Strong v The Hospitals Contribution Fund of Australia Limited (No 3) [2007] NSWADT 27 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT K Eastman, barrister FIRST RESPONDENT I Bourke, barrister
ORDERS:	1. Application under s102 dismissed; 2. Note directions made in preparation for the hearing on 15 August 2007

Background

1 Mr Fittler is blind. On 27 March 2004 he attended a polling booth to cast his vote in an election for his local council. The election was conducted by the Electoral Commission. Mr Fittler says that Randwick Council had a role in conducting the election, but that question remains to be decided.

2 Mr Fittler complains that in providing him its service, the Electoral Commission imposed on him an unreasonable requirement that he could not meet, but that most people who are not blind could meet. The precise terms of the requirement have not been resolved (see below at paras [40]-[43]). It is fair to say at this stage – and argument proceeded on this basis – that the Electoral Commission required Mr Fittler to vote on the form that he was provided with, and Mr Fittler says he couldn’t do that.

3 The Electoral Commission applied to have Mr Fittler’s discrimination complaint dismissed on the ground that “the Applicant’s complaint of discrimination falls within the exception contained in s54 of the Anti-Discrimination Act1977”. Relevantly, that exception says that the Electoral Commission’s imposition of the requirement is not unlawful under the Anti-Discrimination Act if it was necessary in order to comply with a requirement of another Act or regulation.

4 Although Mr Fittler opposed the matter being listed for preliminary hearing and pressed for a full hearing I directed that the Electoral Commission’s application be heard as a preliminary hearing. I made this direction as a procedural matter, because if the Electoral Commission’s conduct was, in fact, necessary in order to comply with a requirement of another Act or regulation, the conduct would be excepted from the Anti-Discrimination Act. Determining that matter may save time and expense in preparing for a hearing, at the cost of some delay in arriving at that hearing (and see Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [15]). In these circumstances I do not accept the argument made for Mr Fittler that the “First Respondent’s reliance on a defence under section 54 must mean that it concedes that it has contravened the Act”.

5 On 28 May 2007 I heard argument in relation to the Electoral Commission’s application. I heard and read submissions on the Electoral Commission’s behalf, and I heard and read Mr Fittler’s submissions in reply. I read the materials and authorities that were brought to my attention. I made my own inquiries to the extent of referring to the Shorter Oxford Dictionary and the third edition of the Macquarie Dictionary for definitions of the words ‘print’ and ‘Braille’, which I advised to the parties.

6 I then refused the Electoral Commission’s application. I said that

I am not satisfied that it was ‘necessary’, as that word is understood in this context, for the Electoral Commission to produce the ballot papers in the format that it did in order to comply with the requirement of another Act or regulation.

7 I then made directions for the parties to prepare the matter for an inquiry into the merits of Mr Fittler’s discrimination complaint.

8 The Electoral Commission has since made a request under section 89(3) of the Administrative Decisions Tribunal Act 1997 for written reasons for my decision. I am obliged to set out my findings on material questions of fact referring to the evidence or material on which those findings are based, my understanding of the applicable law, and the reasoning process that lead me to my conclusions. Having regard to that requirement, these are my reasons for my decision.

Findings on material questions of fact

9 There was no dispute on the facts material to the application.

10 The Electoral Commission’s argument in support of its application was that “legislation regulating the conduct of Local Government elections displays, by the use of highly explicit language, a clear intention to require strict compliance with its terms, such that no discretion was able to be exercised by the First Respondent in relation to the manner and form of voting”.

11 The Electoral Commission relied on legal argument and tendered no evidence. In reply, Mr Fittler engaged in that legal argument, and tendered no evidence.

12 The legislative instruments that were the subject of the argument were the Local Government Act 1993, the Local Government (Elections) Regulation 1998, and the Anti-Discrimination Act 1977. The Local Government (Elections) Regulation 1998 was in force at the time of the conduct complained of by Mr Fittler, but has since been repealed.

13 There was no dispute as to the accuracy of the copies of these legislative instruments relied on in argument.

Understanding of the law

14 My understanding of the law relating to s54 of the Anti-Discrimination Act as it is relevant to this matter is as follows.

15 Section 54 excepts conduct from the operation of the Anti-Discrimination Act when that conduct was necessary in order to comply with a requirement of any other Act or Regulation. That is clear from its terms.

16 The Electoral Commission has the onus of proving that its conduct falls within the terms of the exception provided by s54. That is clear from the terms of s104 oft the Anti-Discrimination Act.

17 As to the meaning of ‘necessary’, both parties relied on the following statement in Lavery v Commissioner of Fire Brigades [2003] ADT 93 at [80] as correctly stating the law: for conduct to be exempt conduct under s 54, a party must “establish that the requirements of the other Act [or Regulation] are mandatory and specific, and permitted no means of compliance except acting in a manner that would otherwise constitute unlawful discrimination”. In saying this the Tribunal in Lavery relied on what had been said by Justices McHugh, Dawson and Toohey in Waters v Public Transport Corporation (1991) 173 CLR 349.

18 That is my understanding of the law as to the meaning of ‘necessary’. I find it helpful to use the test proposed by Justices Dawson and Toohey (at pp 389-390), and to ask “if there were a discretion as to the manner in which the specific directions might be carried out which offered a choice between discrimination and no discrimination”.

19 This is in fact the way in which the Electoral Commission put its argument, saying “the question to be considered is whether, upon a proper construction, the regulations permitted a ballot-paper to be produced, and/or marked, in a manner and form differing from that set out in and intended by the regulations”. I am unsure, however, as to the import of the ‘intention’ of the regulations. If their relevant meaning is clear – that is, that they impose mandatory and specific requirements – then there is no reason to resort to their intention.

20 The way the Electoral Commission put the question is substantively the same as the way it was put by Mr Fittler: did the requirement to complete the ballot paper in the prescribed form arise from the provisions of the Local Government Act and the Local Government (Elections) Regulation”. I am not sure however that the phrase ‘in the prescribed form’ is strictly accurate as a statement of Mr Fittler’s complaint. It is not the prescribed form itself that Mr Fittler complains of, but the format in which the prescribed form was produced or printed or presented to him.

21 My understanding of the law relating to the Local Government Act1993 as it is relevant to this matter is as follows.

22 Mr Fittler is complaining of the manner in which the Electoral Commission conducted local government elections on 27 March 2004. Those elections were conducted under Chapter 10 of the Local Government Act (the LGA) and provisions of the Local Government (Elections) Regulation 1998 (the LGER) (since repealed).

23 Specifically, Mr Fittler’s complaint concerns the form of the ballot paper. The form of the ballot papers is prescribed principally by clause 38(8) and Schedule 8 of the LGER. Sections 308C, 316, and 321-324 of the LGA also set out requirements regarding the form of ballot papers.

Reasoning process

24 The Electoral Commission says that it was ‘necessary’ – as that terms is used in s54 of the Anti-Discrimination Act 1977 (see para [17] above) – for it to impose on Mr Fittler the requirement that he vote on the form that he was provided with. The question for me is whether the requirements of the LGA and LERG were mandatory and specific, and permitted the Electoral Commission no means of compliance except imposing that requirement on Mr Fittler.

25 The Electoral Commission argued that “legislation regulating the conduct of Local Government elections displays, by the use of highly explicit language, a clear intention to require strict compliance with its terms”. I agree. Specifically, the LGA and LGER together make clear that a ballot-paper had to comply with LGER clause 38 and Schedule 8. The Electoral Commission had no discretion in that except that, when a polling place ran out of ballot papers, the returning officer was permitted to “have the ballot paper reproduced in writing, or by any other means” (LGER clause 42) as long as it complied with Schedule 8.

26 Having established that the form of the ballot paper is strictly prescribed, the further question is whether the legislation was mandatory and specific as to the format that the ballot papers, in the proper form, were to be made available to a voter.

27 The form required by clause 38 and Schedule 8 sets out the information – or content or substance – that must appear on the ballot-paper. All that is prescribed must appear, and nothing that is not prescribed must appear. A ballot-paper that contains all that is required by clause 38 and Schedule 8, and nothing more, will comply with clause 38 and Schedule 8. This is quite apart from the format that the ballot-paper will take. Clause 38 and Schedule 8 do not, for example, prescribe size or type of paper, colour of ink, type of font, or even that the ballot-paper be rendered in ink on paper.

28 I am distinguishing here between form and format. By ‘form’ I mean the form described in LGER clause 38 and Schedule 8. By ‘format’ I mean the manner in which that form is rendered so it can be used by the voter. In Mr Fittler’s case the manner of rendering the prescribed form to the voter was paper, on which Roman letters were printed in ink. Another possible manner of rendering the prescribed form was paper on which in Braille letters were printed in embossing.

29 The Electoral Commission did not dispute that the word “printed” in LGER clause 38 encompasses Braille embossment. The Electoral Commission’s argument is that a ballot-paper that is embossed in Braille is not in the prescribed form of Schedule 8.

30 I am not satisfied that that is so. The Electoral Commission’s argument conflates ideas of form and format. Mr Fittler’s complaint is not about the form as it is prescribed. It is about the format in which he was required to complete the prescribed form.

31 There is a single indication in the LGA and LGER as to the manner in which the prescribed form must be rendered, and it is only an indication. Section 324(2) LGA says that “The names, or abbreviated names, of political parties printed on ballot-papers adjacent to the names of candidates are to be in capital letters in type that is uniform in size and style for all of the political parties’ names or abbreviated names”.

32 This is the only reference that I can find in the LGA and LGER to size and style of “type” of “letters”. I do not know if reference to the “type” of “letters” is necessarily a reference to only printed Roman letters, or whether it could encompass Braille. I do not know if it is possible in Braille to represent capitals and uniformity of “size and style”.

33 This single reference, and the unanswered questions that flow from it, are far from sufficient to satisfy me that, as the Electoral Commission claims and has the onus of establishing, the LGA and LGER are mandatory and specific and permitted no means of compliance except to render the ballot-paper, in the prescribed form, in the manner in which it was.

34 The Electoral Commission relied on the ubiquitous Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. This is authority for saying that in “determining the validity of an act done in breach of a statutory provision” it is “the preferred approach” for the court “to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”. The approach is to be preferred asking “whether compliance with the provision is mandatory or directory” (at p 390, [93]).

35 I am not sure that the authority is apt to this matter. There is no avoiding the word “necessary” in s54 and the consequent inquiry into the “mandatory and specific” nature of the provisions in question. Project Blue Sky addresses a different circumstance. If, nevertheless, I was to ask whether it was a purpose of the LGA and LGER that rendering the prescribed form to the voter in a format other than on paper on which Roman letters were printed in ink should be invalid, I would say ‘no’. I can divine no such purpose.

36 The Electoral Commission has not satisfied me that the LGA and LGER were mandatory and specific as to the format in which Mr Fittler was required to complete the prescribed form. In my view there was a discretion available to the Electoral Commission as to the manner in which the specific directions of the LGA and LGER could have been carried out.

37 It was for these reasons that I dismissed the Electoral Commission’s application.

Future conduct of the matter

38 Having dismissed the Electoral Commission’s application I then made directions for the future conduct of the matter. I directed a timetable for the Electoral Commission to file a defence to Mr Fittler’s amended points of claim and all evidence on which it intends to rely at the hearing, and for Mr Fittler to file evidence strictly in reply, if any. I set the matter down for hearing on 15 August at 10.00 am.

39 The parties agreed with me that the only issue to be resolved is whether the requirement imposed by the Electoral Commission on Mr Fittler was reasonable.

Terms of the requirement

40 Counsel for Mr Fittler advised the Electoral Commission, Randwick City Council and the Tribunal that the requirement that Mr Fittler says was imposed is that set out at paras 14 and 15 of his Amended Points of Claim, which is that “[the Electoral Commission] required [Mr Fittler], in order to comply with his statutory obligation to cast a vote and to exercise his right to cast his vote independently and privately, [to] ... complete the ballot-paper ... in a format which could not be read or understood by him as a blind person”.

41 The terms of any actual requirement that was imposed will be a matter for the Tribunal to decide on the evidence (see eg Strong v The Hospitals Contribution Fund of Australia Limited (No 3) [2007] NSWADT 27 at [87]). At the same time considerations of fairness and efficiency suggest it is desirable that the terms of the requirement be resolved before evidence is led as to its reasonableness (see eg Strong at [127] – [130]).

42 That leads me to observe on the terms of the requirement that, at this stage, Mr Fittler says he relies. I am confident that his general intention is clear to the Electoral Commission – he intends to identify the fact that he had to fill in a form that most people could fill in but that he, because of the format it was in, could not. But Mr Fittler has phrased the requirement in a way that describes it as a requirement that he could not meet, rather than as a “facially neutral” requirement that applied equally to all voters on that day.

43 In my view, the requirement that Mr Fittler has attempted to articulate in para [40] above, if it were expressed in terms that were imposed on all voters on the day, could be that “[the Electoral Commission] required [Mr Fittler], in order to comply with his statutory obligation to cast a vote and to exercise his right to cast his vote independently and privately, [to] ... complete the ballot-paper ... in a format which was in Roman numerals printed in ink on paper”.

44 Subject to any different re-statement of the alleged requirement that Mr Fittler wishes to allege in a further amended claim, I invite the Electoral Commission to file its defence and prepare its evidence on the basis that those are the terms of the requirement that Mr Fittler alleges was imposed on him.

Application by Randwick City Council

45 I note the Randwick City Council had been advised that its s 102 application was to have been heard on 21 December when this matter was first listed for a preliminary hearing on the s 54 point. When that date was vacated the Council was advised that its application would be heard on the next occasion. That was then overlooked when this matter was set down for hearing, and the other parties were not put on notice as to when the Council’s application would be argued. Accordingly I directed that the council’s application be heard at the hearing of the matter, and I directed a timetable for the filing of any evidence the Council wishes to rely.

46 I note that I have not been asked to vary, and I have not varied, any of the directions I made on 28 May 2007 for the future conduct of the matter in preparation for the hearing on 15 August 2007.

ORDER

1. Application under s102 dismissed

2. Note directions made in preparation for the hearing on 15 August 2007.

27/06/2007 - Catchword corrected - Paragraph(s) Catchwords