Horn v Australian Electoral Commission

FEDERAL COURT OF AUSTRALIA

Horn v Australian Electoral Commission [2006] FCA 1778

PROCEDURE – application to dismiss proceeding – obligation on Australian Electoral Commission to screen voters from observation when marking ballot-papers – whether application relating to prospective future refusal of voter to enter booth as provided at last election gives rise to a ‘matter’ – effect of draft proposed substitute application – whether applicant has sufficient material interest

ELECTORAL LAW – obligation to screen voters from observation – whether reasonably arguable that obligation requires provision of enclosed booths – whether anticipated refusal to vote in non-enclosed booths at next federal election gives rise to justiciable matter

CommonwealthElectoral Act 1918 (Cth) ss 206, 233(1)(a), 245(1), 245(8), 245(15), 245(15A), 245(15B), 283, 284, 338, 348, 355
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Judiciary Act 1903 (Cth) ss 39B, 39B(1), 39B(1A)(c)

Federal Court Rules O 20 r 2

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493
Croome v Tasmania (1997) 191 CLR 119
In re The Judiciary Act 1903-1920 and in re The Navigation Act 1912-1920 (1921) 29 CLR 257
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591

DIETER HANS GUSTAV HORN v AUSTRALIAN ELECTORAL COMMISSION
WAD 232 OF 2006

NICHOLSON J
19 DECEMBER 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 232 OF 2006

BETWEEN:	DIETER HANS GUSTAV HORN Applicant
AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	19 DECEMBER 2006
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The respondent’s notice of motion dated 26 September 2006 be granted.

2.The proceeding be dismissed.

3.The applicant pay the respondent’s costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 232 OF 2006

BETWEEN:	DIETER HANS GUSTAV HORN Applicant
AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent

JUDGE:	NICHOLSON J
DATE:	19 DECEMBER 2006
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 19 October 2004 the applicant attended at the Manjimup Town Hall for the purpose of voting in the Commonwealth elections.  When there he formed the view that if he were to vote, his vote would not be screened from observation when he marked his ballot-papers.  He therefore departed without either registering or voting. 

2. On 16 August 2006 the applicant filed an application requesting the Court to compel the respondent to construct voting compartments in what he says would be in accord with the requirements of ss 206 (first part) and 233(1)(a) of the CommonwealthElectoral Act 1918 (Cth) (the Electoral Act). He sought specifically that the Court should compel him to be screened from observation from above the knees to above the head from all four vertical sides when marking his ballot-papers in the voting compartment in future federal elections and referenda.

3. Section 206 reads:

   ‘206Polling booths shall have separate voting compartments, constructed so as to screen voters from observation while they are…