FEDERAL COURT OF AUSTRALIA
Horn v Australian Electoral Commission [2007] FCA 1827
PROCEDURE – application to dismiss proceeding – obligation on Australian Electoral Commission to screen voters from observation when marking ballot-papers – whether application relating to imminent likely repeated refusal of voter to vote gives rise to a ‘matter’ –whether applicant has sufficient material interest
ELECTORAL LAW – obligation to screen voters from observation while they are marking the ballot paper – whether obligation requires provision of enclosed booths
CONSTITUTIONAL LAW – whether a secret ballot is entrenched in the Constitution – whether a secret ballot requires voters to be screened from observation while marking ballot papers – whether secrecy of how the ballot paper is marked suffices
DECLARATORY RELIEF – alternative discretionary factors - election imminent – consequence to applicant of alleged breach compared with potential widespread cost of disruption to Federal election
Held: The application be dismissed. The respondent’s notice of motion to dismiss the proceedings filed on 2 November 2007 be dismissed.
Acts Interpretation Act 1901 (Cth) s 15AA
Commonwealth Electoral Act 1918 (Cth) ss 206, 233, 233(1), 233(1)(a), 233(1)(b), 245, 245(1), 245(8), 338, 348
Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2)
Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c), 78B, 78B(1)Commonwealth Constitution ss 7, 24, 75, 76, 77
Federal Court Rules O 20 r 5
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
Coco v R (1994) 179 CLR 427
Croome v Tasmania (1997) 191 CLR 119
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Horn v Australian Electoral Commission [2006] FCA 1778
Re Judiciary and Navigation Acts (1921) 29 CLR 257
McGinty v Western Australia (1996) 186 CLR 140
Mills v Meeking (1990) 169 CLR 214
Mulholland v Australian Electoral Commission (2004) 220 CLR 181
Nation Wide News Pty Ltd v Wills (1992) 177 CLR 1
Newcastle and Hunter River Steamship Co. Ltd. v Attorney-General for the Commonwealth (1921) 29 CLR 357
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Roach v Electoral Commissioner (2007) 239 ALR 1
Society of Engineers v Adelaide Steam Ship Co Ltd (the Engineers case) (1920) 28 CLR 129
Swain v Hillman [2001] 1 All ER 91
The State of South Australia v The State of Victoria (1911) 12 CLR 667DIETER HANS GUSTAV HORN v AUSTRALIAN ELECTORAL COMMISSION
WAD 208 OF 2007MCKERRACHER J
23 NOVEMBER 2007
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 208 OF 2007
BETWEEN:
DIETER HANS GUSTAV HORN
ApplicantAND:
AUSTRALIAN ELECTORAL COMMISSION
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
23 NOVEMBER 2007
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The respondent’s notice of motion to dismiss the proceedings filed on 2 November 2007 be dismissed.
3.Costs reserved.
Note: Settlement and entry…
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- Case
- [2007] FCA 1827
- Decision Date
CaseChat Overview and Summary
The primary issues the Court had to determine were whether Mr Horn had standing to pursue his claim and if he had demonstrated that the AEC failed or would fail to comply with sections 206 and 233 of the Electoral Act. The Court had to consider the nature of the jurisdiction invoked under section 39B of the Judiciary Act and whether there was a sufficient matter in dispute to confer jurisdiction. The AEC argued that since there was no present obligation to vote, no matter had arisen that could invoke the Court's jurisdiction.
The Court dismissed the AEC's motion to dismiss, finding that there was indeed a matter in dispute concerning the AEC's compliance with electoral laws. The Court held that the statutory obligation to provide adequate privacy at polling places created a matter in dispute that was sufficient to confer jurisdiction. The Court also found that Mr Horn had standing to bring the claim, as his allegations, if proven, would affect his right to vote in private, which is a fundamental aspect of the electoral process. The Court, therefore, dismissed the AEC's motion to dismiss and reserved costs.
Orders
Orders of the court
1. The application be dismissed.
2. The respondent’s notice of motion to dismiss the proceedings filed on 2 November 2007 be dismissed.
3. Costs reserved.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MCKERRACHER J
Full text does not contain this section.