Horn v Australian Electoral Commission

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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 667

DIETER HANS GUSTAV HORN v AUSTRALIAN ELECTORAL COMMISSION
WAD 208 OF 2007

MCKERRACHER J
23 NOVEMBER 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 208 OF 2007

BETWEEN:

DIETER HANS GUSTAV HORN
Applicant

AND:

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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Details
Case
[2007] FCA 1827
Decision Date

CaseChat Overview and Summary

In Horn v Australian Electoral Commission, Mr Horn, a retired bus driver and naturalised Australian citizen, challenged the Australian Electoral Commission's (AEC) compliance with electoral laws regarding the privacy of voters at polling places. Mr Horn alleged that the polling booths at the Manjimup Town Hall during the 2004 federal election did not provide adequate privacy for voters, leading him to leave without voting. He sought to compel the AEC to provide information about its plans for future elections and to enforce his right to vote in private. The AEC, represented by its Director of Operations in Western Australia, Mr Ian Stringall, moved to dismiss Mr Horn's proceedings on jurisdictional grounds, arguing that there was no present obligation to vote and, therefore, no matter in dispute that could confer jurisdiction on the Court.

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

It follows that the Commission’s motion will be dismissed.THE SUBSTANTIVE EVIDENCE Mr Horn is a retired Transperth bus driver who was born on 5 December 1938 in Germany before emigrating to Australia in 1962. He became a naturalised Australian citizen in 2001. At the last federal election held on 9 October 2004 he attended to vote at an authorised polling place at the Manjimup Town Hall in Western Australia. He found that the way in which the polling booths were constructed, assembled and arranged at that location did, in his view, not adequately screen voters from observation. By this he means that other persons in the vicinity of the polling booths could observe voters while they were marking their ballot-papers. The compartments of the polling booths at the Manjimup Town Hall did not have a door or screen to adequately prevent other persons including electoral officers or persons associated with political parties from standing near or behind voters marking their ballot-papers and/or from observing the physical movements of voters in the booths. Marking the ballot-paper he says involves the writing of details of voting choices and also the arranging and examining of how to vote cards supplied by political parties when marking the ballot-papers. He said further that the physical walls of the voting booths at the sides of the shelf of the booths were not sufficiently extensive to screen voters from being observed when they marked their ballot-papers. He formed the opinion that he had been provided with a voting compartment where he could not mark his ballot-papers in private. For that reason he left the polling place without casting a vote. He explained that he regards the right and obligation to vote in strict accordance with the Electoral Act as essential to maintaining the secrecy of the ballot. Clearly he regards the issue importantly and this is why he has, amongst other steps, issued two sets of proceedings in relation to his rights and obligations. His attempts to voluntarily obtain from the Commission the documents to which I have referred were unsuccessful. That is why he issued proceedings to have such material produced. Mr Ian Stringall is the Director of Operations for the Commission in Western Australia and has held that position since 2005. He is clearly experienced having been involved with or having conducted as a returning officer at least eight federal elections, two constitutional referendums and five national Aboriginal and Torres Straight Islander elections. He described the statutory responsibility for the Commission to conduct federal elections and to administer compulsory enrolment and compulsory voting. The Commission’s resources including manpower and funding are presently committed to preparation for the 2007 Federal Election which is a nation wide project and ‘an enormous logistical, complex and costly undertaking with a public expectation that it will be conducted on 24 November 2007 fairly, impartially, effectively and efficiently’. At the 2007 Federal Election 13.6 million Australians are eligible to vote compared with a little over 13 million for the previous election.

Decision

Reasons for decision

MCKERRACHER J
The primary issues falling for determination at this hearing have been first, whether Mr Horn has standing to pursue the proceedings and second, whether Mr Horn has discharged the onus of demonstrating that the Commission has failed or will fail to comply with the requirements of ss 206 and 233 of the Electoral Act. HISTORY SUBSEQUENT TO THE 2006 DECISION (Horn [2006] FCA 1778) It is common ground that Mr Horn has persisted with his requests of the Commission for information as to whether the Commission intended to supply polling booths of the same kind that were supplied and to which he took objection in the 2006 proceedings. On 7 September 2007 Mr Horn wrote to the Commission seeking to inspect examples of the kind of polling booths that it would provide at nominated polling places within the division of Forrest as well as plans of the relevant layout of those polling places. On 18 September 2007 the Commission’s Chief Legal Officer declined Mr Horn’s request regarding information about the details of the polling booths to be provided at the 2007 Federal Election and refused to engage in further correspondence on the matter. Accordingly he has issued these proceedings. MOTION TO DISMISS To the extent that the Commission relies upon s 31A in its motion, it is required to establish that there is ‘no reasonable prospect of success’ on the jurisdiction argument advanced by Mr Horn. As observed by Heerey J in Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471, s 31A of the Federal Court Act 1976 (Cth) was introduced to establish a lower standard for strike outs (either of claims or defences) than that previously laid down by the High Court’s decisions in Dey v Victorian Railway Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125. Nevertheless, while the test is lower, as Barrett J in Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 held, for the purposes of the comparable provision in New South Wales (‘without reasonable prospects of success’) meant ‘so lacking in merit or substance as to be not fairly arguable’. In Swain v Hillman [2001] 1 All ER 91, Court of Appeal per Lord Woolf MR said at 92:The words “no real prospect of succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospect of success or … they direct the court to the need to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.JURISDICTIONAL ARGUMENT As in the initial proceedings as amended, Mr Horn has sought to invoke the jurisdiction of this Court under s 39B of the Judiciary Act. The Commission contends in its dismissal motion that there is no present obligation to vote (and, as yet, no refusal without good cause to vote). It follows, it is said, that no ‘matter’ for the purposes of s 76 of the Constitution has arisen and the Court therefore has no jurisdiction. The Court has jurisdiction to resolve the whole of a dispute in circumstances where a Commonwealth statute is involved in the dispute (s 39B(1A)(c) of the Judiciary Act). This general conferral of non-criminal federal jurisdiction suffices to support jurisdiction so long as there is actually a ‘matter’ in dispute. (Section 39B(1A)(c) is authorised by s 77 of the Constitution when read together with ss 75 and 76).

Ratio Decidendi

Legal Principle Established

Established by: MCKERRACHER J

Full text does not contain this section.