Hansen v Australian Electoral Commission - [2000] FCA 606

FEDERAL COURT OF AUSTRALIA
Hansen v Australian Electoral Commission [2000] FCA 606
ELECTIONS – Aboriginal and Torres Strait Islander Commission Act – Regional Council election – disputed election – motion to dismiss petition – whether alleged errors constitute illegal practices – whether facts alleged sufficient to establish that results of election likely to be affected – alleged errors occurred outside relevant region – no specific claim of number of voters affected or election margins – petition dismissed
Aboriginal and Torres Strait Islander Commission Act1989, s 27, s 91(1), s 100A, s 101, s 108, s 109, s 110, s 113(3), s 130(1), s 131, s 140
Commonwealth Electoral Act 1918, s 161(e), s 355(a), s 362(3), s 365
Whitby v Garlett [2000] FCA 245 followed
Rudolphy v Lightfoot (1999) 167 ALR 105 applied
Sykes v Australian Electoral Commission (1993) 115 ALR 645 applied
Nile v Wood (1988) 167 CLR 133 applied
Robertson v Australian Electoral Commission (1993) 116 ALR 407 referred
Cole v Lacey (1964) 112 CLR 45 applied
Pettit v Atkinson (1994) 50 FCR 174 referred
Kean v Kerby (1920) 27 CLR 449 referred
Yarran v Blurton (1992) 35 FCR 485 discussed
Evans v Crichton-Browne (1981) 33 ALR 609 applied
Shaw v Wolf (1998) 83 FCR 113 referred
GARY HANSEN v AUSTRALIAN ELECTORAL COMMISSION
V 677 of 1999
KENNY J
MELBOURNE
10 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 677 OF 1999

BETWEEN:

GARY HANSEN
Petitioner

AND:

AUSTRALIAN ELECTORAL COMMISSION
Respondent

JUDGE:

KENNY J

DATE OF ORDER:

10 MAY 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The petition be dismissed.

2.The petitioner pay the respondent’s costs of and incidental to the petition and the motion, notice of which is dated 29 February 2000, fixed in the amount of $6,000.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 677 OF 1999

BETWEEN:

GARY HANSEN
Petitioner

AND:

AUSTRALIAN ELECTORAL COMMISSION
Respondent

JUDGE:

KENNY J

DATE:

10 MAY 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
introduction

Gary Hansen, an unsuccessful candidate for election to the Tumbukka (previously Ballarat) Regional Council established under the Aboriginal and Torres Strait Islander Commission Act1989 (“ATSIC Act”), disputes the validity of the election by way of a petition filed in this Court on 6 December 1999. Amongst other things, the petition seeks a declaration that the election for the Tumbukka Regional Council was absolutely void. The Australian Electoral Commission (“AEC”), which is named on the petition as respondent, moves for orders that the petition be dismissed or, in the alternative, stayed on the grounds 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. There is no supporting affidavit.
There was, so it seems, an election held for the Tumbukka Regional Council on 9 October 1999 (“the election”). Council for the AEC…

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.

Keep reading for free

Create a free CaseChat account to read Hansen v Australian Electoral Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] FCA 606
Decision Date: 10 MAY 2000

CaseChat Overview and Summary

The case of Hansen v Australian Electoral Commission involves a petition to invalidate an election outcome on various grounds. The petitioner, Hansen, argues that irregularities at a polling booth in Moama North, New South Wales, during an ATSIC Regional Council Election led to a significant number of potential voters being unable to cast their ballots. The polling booth in question was located in a pavilion at the recreation reserve clubhouse and was attended by around 3,000 Aboriginal and Torres Strait Islanders due to a nearby football carnival. Hansen contends that the election irregularities were sufficient to invalidate the outcome.

The central legal issues addressed by the court were whether the alleged irregularities at the polling booth were significant enough to warrant the invalidation of the election. Hansen claimed that the booth failed to display candidate photos, a conflict of interest existed due to Caroline Steele’s involvement in voter registration while her daughter was a candidate, polling staff were insensitive in determining Aboriginality, the booth closed prematurely due to a shortage of ballot slips, and a misleading sign was displayed when the booth was closed. Each of these issues raised questions about the fairness and compliance with electoral rules.

The court found that the petitioner had not provided sufficient evidence to substantiate the claims of irregularities. While the petitioner presented a range of grievances, the court concluded that these did not meet the threshold for invalidation of the election. The court held that Hansen had not demonstrated that the alleged irregularities were significant enough to affect the outcome of the election or that they were not adequately addressed by the electoral commission. Consequently, the petition was dismissed, and Hansen was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The petition be dismissed.

2. The petitioner pay the respondent’s costs of and incidental to the petition and the motion, notice of which is dated 29 February 2000, fixed in the amount of $6,000.

Background

Background to the litigation

The petition sets out facts relied on to invalidate the election as follows:facts relied upon to invalidate electionThe following events occurred at the ATSIC Regional Council Election booth situated at Moama North, a small town near Echuca, in the pavilion of the recreation reserve clubhouse, Perricoota Road, Moama, New South Wales. This booth was of some importance as a football carnival was taking place on the day of the election. Some 3,000 Aboriginal and Torres Strait people attended at the carnival and potentially could have voted in the booth. The number of primary votes required to win a place on the Tumbukka Council was small being between 20 to 50. 1.Polling booth failed to display photos of candidates: Photos are useful in assisting voters who may be illiterate. The Victorian Aboriginal Community has higher levels of illiteracy than the general community. The candidate, Gary Hansen, in accordance with rule 78(1) of the ATSIC Regional Council Election Rules provided a photo for this purpose yet no photos of any candidates were displayed. 2.Conflict of Interests: Caroline Steele was involved in getting people on the electoral role [sic] yet her daughter, Caroline Martin, was also a candidate in that election and was elected. The process of getting people on the rolls was to have Ms Caroline Steele approach potential voters and to have them fill in a voter registration form. This form would be retained by Ms Steele and it would have been possible for her to pass on to her daughter lists of those eligible to vote. It was not the practice for such forms to be keep in sealed envelopes or for their contents to remain confidential. 3.Insensitive Polling Staff Discouraged Participation: Polling booth officials were rude in determining the Aboriginality of potential voters. Although the Liaison Officer is empowered to ask whatever questions are considered necessary pursuant to ATSIC Regional Council Election Rules [Rule 78(1)], this task was carried out insensitively and discouraged participation in the election. The petitioner knows of people who did not vote for this reason. 4.Polling booth closed due to running out of ballot slips: The polling booth was shut down at 2pm. The reason for this was that the booth ran out of ballots. The procedure to be followed in such cases is for the booth to remain open and for slips to be photocopied. This did not occur on this occasion. Alternatively, Polling Place Liaison Officers carry extra polling slips and should have been contacted by Judith Atkinson who was the officer in charge of the booth. As a result of Judith Atkinson’s failure to comply with procedures, potential voters were rendered unable to cast their vote. 5.Misleading sign placed on polling booth: When the polling booth was shut down, a small sign written in blue texta was displayed directing potential voters to the YMCA in Echuca. No one manned the booth to direct potential voters to other booths. The sign was deceptive, for those able to read, as there was no polling booth at this location.The petition did not name any person as respondent other than the AEC.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KENNY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 677 OF 1999

BETWEEN:	GARY HANSEN Petitioner
AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent
JUDGE:	KENNY J
DATE OF ORDER:	10 MAY 2000
WHERE MADE:	MELBOURNE

JUDGE:	KENNY J
DATE:	10 MAY 2000
PLACE:	MELBOURNE