Free v Kelly and Australian Electoral Commission

[1996] HCA 41

HIGH COURT OF AUSTRALIA

BRENNAN CJ

ROSS VINCENT FREE v JACQUELINE MARIE KELLY and AUSTRALIAN ELECTORAL COMMISSION

(1996) 185 CLR 296

2 August 1996

Election petition—House of Representatives—Court of Disputed Returns—Whether to reserve a question to the Full Court. Commonwealth Electoral Act 1918, ss 360, 364.

Headnote

Hearing

CANBERRA, 29 July and 2 August 1996
#DATE 2:8:1996



Counsel for the Petitioner: J.A. McCarthy QC (for hearing
of 29.7.96)
J.A. McCarthy QC with
J.A. Hatzistergos (for hearing
of 2.8.96 and 5.9.96



Solicitors for the Petitioner: McClellands


Counsel for the First Respondent: R.E. Williams QC


Solicitors for the First Respondent: Minter Ellison


Counsel for the Second Respondent: S C. Kenny


Solicitor for the Second Respondent: Australian Government Solicitor


Interveners: G. Griffith QC, Solicitor-General for the Commonwealth, instructed by the 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.

Decision

BRENNAN CJ. The question for decision at this stage of the proceedings is whether I should state a case or reserve for the opinion of the Full Court a question which would invite reconsideration of the passage of the joint judgment of Mason CJ, Toohey and McHugh JJ in Sykes v Cleary (1) in which their Honours held that the election in which Mr Cleary had purportedly been returned was absolutely void. Mr McCarthy QC, for the petitioner, seeks to challenge that passage for two reasons. First, it is submitted that that passage unduly limits the discretion which the Court of Disputed Returns must exercise under ss 360 and 364 of the Commonwealth Electoral Act 1918 and, secondly, because that passage is not easily reconciled with the judgment of the Court in In re Wood (2). It is apprehended that, unless this passage in Sykes v Cleary is reconsidered and modified, the submissions which the petitioner would make in the event that the first respondent is held to have been disqualified from being chosen will be unduly confined.


2. Sitting as a single Justice in the Court of Disputed Returns, I would be bound to follow the ratio of the decision in Sykes v Cleary. That is a recent decision of the Full Court and the passage of the joint judgment now under attack was, as I read the judgments, agreed to by myself (3), by Dawson J (4) and by Gaudron J (5). A decision of the Full Court on a particular point of law which has been delivered after argument and consideration is not to be re-argued merely because the authority of that decision stands in the way of an argument in a subsequent case that would otherwise be open. At the very least, some ground would have to be shown for doubting the correctness of the authority. In this case nothing that has been said leads me to doubt the correctness of the challenged passage in Sykes v Cleary once it is properly construed by reference to the circumstances of that case.


3. The joint judgment did not challenge the propositions advanced in In re Wood set out in Sykes v Cleary (6). In particular their Honours accepted that "(a)lthough an indication of a voter's preference for an unqualified candidate is a nullity and the indication of preference for that candidate cannot be treated as effective, the ballot paper is not informal" (7). The true ratio of this part of the decision is not that ballot preferences cannot be ascertained by a special count. The ratio is that whereas a special count in In re Wood "was such as to warrant the conclusion that (it) would reflect the voters' 'true legal intent'" a special count in the election of Mr Cleary "could result in a distortion of the voters' real intentions" (8). The reason why the special count could result in a distortion in Sykes v Cleary was "because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent". In other words, if the name of the disqualified Mr Cleary had not appeared on the ballot-paper the voters' preferences might have been differently expressed. The logic of that proposition seems to me to be inexorable. The Court's appreciation of the position accords precisely with the direction given by s 364 of the Commonwealth Electoral Act.


4. Further, the analogy that was drawn from the statutory provisions relating to the death of a Senate candidate after nomination and the death of a candidate for the House of Representatives after nomination is a valid analogy by reason of the different method of counting votes in elections for the different chambers of the Parliament. The Court recognised that, just as the death of a candidate for the Senate prior to polling day would not necessarily distort the voters' real intentions, the disqualification of a candidate in a Senate election would not distort the voters' real intentions. And, just as the Parliament perceived that the death of a candidate in a House of Representatives elections might well distort the voters' real intentions, so the disqualification of the candidate who had succeeded in the multi-candidate election in Sykes v Cleary could well distort the voters' real intentions.


5. Perceiving no ground which would be likely to call for reconsideration of what was decided in Sykes v Cleary, I refuse the application to refer to the Full Court a question raising the correctness of the decision as to the voidness of that election. It will be a matter for argument at the trial of the present petition, in the event that Ms Kelly is held to have been disqualified by s 44 of the Constitution, whether a special count "could result in a distortion of the voters' real intentions" to take the phrase directly from the joint judgment in Sykes v Cleary.


6. Mr McCarthy has indicated that he proposes to argue that in this case a special count would not result in such a distortion. However, that is not a matter to be determined at this stage. It must be decided on the trial of the petition. I now propose by order to appoint, pursuant to O 68 r 10, a time and place for the holding of the trial of the petition.
1 (1992) 176 CLR 77 at 101-102.
2 (1988) 167 CLR 145.
3 (1992) 176 CLR 77 at 108.
4 (1992) 176 CLR 77 at 130-131.
5 (1992) 176 CLR 77 at 132.
6 (1992) 176 CLR 77 at 101.
7 (1992) 176 CLR 77 at 101.
8 (1992) 176 CLR 77 at 102.