Frederick Arnold Hooper v Australian Electoral Commission

[2015] HCASL 247

Frederick Arnold Hooper
v
Australian Electoral Commission

[2015] HCASL 247
S154/2015

1. By court attendance notice issued on 27 August 2014 returnable in the Bourke Local Court, the applicant was charged with the offence of failing to vote in the 2013 Federal Election without having a valid and sufficient reason for that failure.

2. The applicant proposes to defend the charge on the footing that s 245 of the Commonwealth Electoral Act 1918 (Cth) ("the Act") does not apply to him as an Aboriginal Australian and that he was ineligible to vote. The argument is premised upon acceptance of constitutional challenges to the legislative power of the Commonwealth Parliament to provide for Aboriginal Australians to vote in federal elections.

3. On 19 August 2015, the applicant filed an application to remove the proceeding pending in the Local Court to this Court to answer the constitutional questions raised by his defence.

4. The fact that the applicant proposes to raise a constitutional argument does not make it appropriate for this Court to remove the proceeding.   It is generally undesirable to fragment proceedings.  That is particularly so in the case of criminal proceedings.  In the event the applicant were to be convicted of the charge, his constitutional argument would be preserved in any appeal.  There is no urgency or other sufficient reason to warrant the removal of the proceeding to this Court for determination. 

5. Pursuant to r 26.06.3 and r 41.11.1, we direct the Registrar to draw up, sign and seal and order dismissing the application with costs. 

V.M. Bell
17 December 2015 S.J. Gageler