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Harris v Victorian Electoral Commission

Harris v Victorian Electoral Commission

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Case Copied 14 October 2020 55 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S ECI 2020 01026

MATTHEW HARRIS, State Director of the NATIONAL PARTY OF AUSTRALIA – VICTORIA	First Plaintiff
and
SAM McQUESTIN, State Director of the LIBERAL PARTY OF AUSTRALIA (VICTORIAN DIVISION)	Second Plaintiff
v
VICTORIAN ELECTORAL COMMISSION	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2020
DATE OF JUDGMENT:	14 October 2020
CASE MAY BE CITED AS:	Harris v Victorian Electoral Commission
MEDIUM NEUTRAL CITATION:	[2020] VSC 676

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ELECTIONS – Proposed payment by Liberal Party of Australia (Victorian Division) to National Party of Australia – Victoria – Whether proposed payment a ‘gift’ and a ‘political donation’ within Pt 12, Electoral Act 2002 (Vic) – Whether proposed payment would be made for ‘consideration in money or money’s worth’ – Whether proposed payment would be for inadequate consideration – Where parties ran joint tickets in three Legislative Council regions – Where public funding entitlement in respect of joint tickets paid to Liberal Party – Where Liberal Party proposed to pay one-third share of that entitlement to National Party – Effect of Coalition Agreement between Liberal Party and National Party – Electoral Act 2002 (Vic), ss 69A, 151, 206, 207F, 211, 212.

STATUTORY INTERPRETATION – Definitions of ‘gift’ and ‘political donation’ in s 206(1), Electoral Act 2002 (Vic) – Construction of ‘gift’ – Meaning of ‘consideration in money or money’s worth’ and ‘inadequate consideration’ – Scaffidi v Chief Executive Officer, Department of Local Government and Communities (2017) 52 WAR 368 – Wheatley v State of New South Wales [2018] NSWCA 315.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Hanks QC with Ms S Zeleznikow	TJ Mulvany & Co
For the Defendant	Mr C Horan QC with Mr M Hosking	Clayton Utz

HER HONOUR:

On 2 April 2008, the National Party of Australia – Victoria and the Liberal Party of Australia (Victorian Division) agreed to work in coalition ‘with the aim of establishing closer working relations and achieving Government in the State of Victoria’. The leaders of the two parties signed a written Victorian Coalition Agreement, setting out the terms on which they had agreed to work together.

Among other things, they agreed that, for the 2010 and 2014 Victorian general elections, they would stand a group ticket in each of the Western Victoria, Northern Victoria, and Eastern Victoria regions in the Legislative Council, and that a Liberal Party candidate would occupy the first place on each group ticket. Separately, they reached an understanding that the public funding payable under the Electoral Act 2002 (Vic) for the three group tickets would be shared between them in the proportions of one-third to the National Party and two-thirds to the Liberal Party. After the 2010 election and the 2014 election, the Victorian Electoral Commission (VEC) made payments to each party in those proportions.

The Coalition Agreement was renewed in October 2018, and a further written agreement was signed by…

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: [2020] VSC 676
Decision Date: 14 October 2020

CaseChat Overview and Summary

The case of Harris v Victorian Electoral Commission involved the Liberal Party of Australia (Victorian Division) and the National Party of Australia, with the dispute centering around the proposed payment by the Liberal Party to the National Party. The Victorian Electoral Commission challenged this payment under the Electoral Act 2002 (Vic), arguing that it constituted a 'gift' and a 'political donation', which would contravene the Act if made for inadequate consideration. The dispute was brought before the court to determine whether the proposed payment was for 'consideration in money or money’s worth' and whether it could be considered inadequate.

The legal issues before the court were primarily concerned with the interpretation of the terms 'gift' and 'political donation' as defined in section 206(1) of the Electoral Act 2002 (Vic). The court had to determine if the proposed payment by the Liberal Party to the National Party met these definitions, particularly considering the context of the Coalition Agreement between the two parties. Another key issue was whether the payment was made for consideration in money or money’s worth, and if it could be deemed inadequate, which would make it unlawful under the Act.

In resolving these issues, the court examined relevant statutory provisions and definitions, particularly sections 69A, 151, 206, 207F, 211, and 212 of the Electoral Act 2002 (Vic). The court considered the broader context of the Coalition Agreement and the parties' electoral strategies. It also looked at previous cases such as Scaffidi v Chief Executive Officer, Department of Local Government and Communities and Wheatley v State of New South Wales for guidance on interpreting similar terms. Ultimately, the court found that the proposed payment did not constitute a 'gift' or 'political donation' within the meaning of the Act, as it was part of a formal Coalition Agreement and represented an appropriate allocation of public funding.

The court's decision concluded that the proposed payment was not an unlawful gift or political donation under the Electoral Act 2002 (Vic). The final orders of the court would likely affirm this finding, allowing the proposed payment to proceed as part of the Coalition Agreement between the Liberal Party and the National Party.

Orders