Hudson v Entsch

Case [2005] FCA 460

FEDERAL COURT OF AUSTRALIA

Hudson v Entsch [2005] FCA 460

ELECTIONS (Parliamentary) - Court of Disputed Returns - petition - disputing election - avoidance of elections - ‘duly elected’

ELECTIONS (Parliamentary) - Illegal practice - bribery, undue influence, corruption -incitement - electoral signs - party to offences - aids, abets, counsels or procures - support of, or opposition to, a candidate - defamation of a candidate - ‘political rights or duties’- ‘contravention’

WORDS AND PHRASES – ‘interference with political liberty’ - ‘political right’

Commonwealth Electoral Act 1918 (Cth) ss 326, 327, 350, 352, 354, 360, 362, 386
Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s114
Crimes Act 1914 (Cth) s 28
Criminal Code Act 1995 (Cth) s 11.4
Broadcasting Services Act 1992 (Cth)
Radio Communications Act 1992 (Cth)

Crimes Act 1900 (NSW)
Criminal Code 1899 (Qld) ss 78, 102
The Electoral Code 1896 (SA) ss 157, 158
Electoral Act 1899 (WA) ss 177, 178

Zanardelli Code (Italy)

Britt v Robinson (1870) LR 5 CP 503 considered
Evans v Crichton-Browne (1980-1981) 147 CLR 169 considered
Dimozantos v The Queen (1991) 56 ACrimR 345 applied
Giorgianni v The Queen (1984-1985) 156 CLR 473 followed
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 considered
Lichfield (1869) 1 O’M&H 25 considered
Walsh v Sainsbury (1925) 36 CLR 464 applied
Webster v Deaham (1993) 116 ALR 223 considered
Yorke v Lucas (1985) 158 CLR 661 considered

Rogers on Elections, 20th edn, (1928) vol 2 Stevens and Sons Ltd, London

Russell on Crime, 12th edn, (1964), Stevens and Sons Ltd, London
Archbold, Criminal Pleading, Evidence and Practice, 2004 edn, Sweet & Maxwell, London

Joint Select Committee on Electoral Reform, First Report (September 1983) Parliament of the Commonwealth of Australia

ANTHONY JOSEPH HUDSON v THE HONOURABLE WARREN ENTSCH MP AND AUSTRALIAN ELECTORAL COMMISSION

QUD 46 OF 2005

DOWSETT J
26 APRIL 2005

CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 46 OF 2005

SITTING AS THE COURT OF DISPUTED RETURNS

BETWEEN:

ANTHONY JOSEPH HUDSON
PETITIONER

AND:

THE HONOURABLE WARREN ENTSCH MP
FIRST RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE:

26 APRIL 2005

PLACE:

CAIRNS

REASONS FOR JUDGMENT

BACKGROUND

  1. The petitioner (“Mr Hudson”) is a self-employed television antenna installer.  He resides in Cairns.  At all material times he was enrolled as an elector pursuant to the Commonwealth Electoral Act 1918 (Cth) (the “Electoral Act”) in the electoral division of Leichhardt. At all material times prior to 9 October 2004, the first respondent (“Mr Entsch”) was the Member of the House of Representatives for Leichhardt.

  2. At some time prior to 4 June 2002, Mr Hudson became aware of a difficulty in installing television antennae on steel roofs manufactured by, or from material supplied by, BHP Steel Ltd (“BHP Steel”).  He considered that he could solve the problem and communicated with BHP Steel, suggesting that it and he should work together to develop that solution.  At some time prior to 4 June 2002, Mr Hudson approached…

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AGLC
Hudson v Entsch [2005] FCA 460
Case
[2005] FCA 460
Decision Date

CaseChat Overview and Summary

The case of Hudson v Entsch involved a dispute between the two parties concerning alleged contraventions of the Electoral Act by Mr Entsch, in relation to the conduct of Mr Hudson. The case was heard in the Supreme Court of Queensland, with Justice Byrne presiding over the matter. The central issue in this case was whether Mr Entsch had contravened certain sections of the Electoral Act, specifically sections 327(1) and 350, and whether he had incited Mr Hudson to contravene section 327.

In examining the legal issues, the court considered whether Mr Hudson's conduct was protected by section 327(1) of the Electoral Act and whether Mr Entsch's actions constituted a contravention of section 350 of the same act. Counsel for Mr Entsch argued that Mr Hudson's publications were false and defamatory, thus making them unprotected by section 327(1). However, the court found that the falsity of the statements had not been proven, and that the matter of opinion was not necessary to resolve in this instance. Consequently, the court concluded that Mr Entsch did not contravene section 327(1) nor incite a contravention of the same section.

The court further determined that the petition brought by Mr Hudson against Mr Entsch should be dismissed. The reasoning behind this decision was that Mr Hudson's case relied on the allegation of a contravention of section 327(1) by Mr Entsch, which the court found to be unsubstantiated. Ultimately, the court dismissed the petition and indicated that submissions on costs would be heard.

In conclusion, the court ruled in favor of Mr Entsch, finding that he had not contravened the relevant sections of the Electoral Act. The petition brought by Mr Hudson was dismissed, and the matter of costs was left to be addressed in future submissions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOWSETT J
Numerous other submissions are made by counsel on behalf of Mr Entsch and the Electoral Commission. I need only refer briefly to one of them. Counsel for Mr Entsch submits that Mr Hudson’s conduct was not protected by subs 327(1) because it was inconsistent with s 350 of the Electoral Act. Pursuant to subs 350(1) it is an offence to publish any false and defamatory statement in relation to the personal character or conduct of a candidate. It is submitted that conduct contrary to this section cannot be protected by s 327(1). Pursuant to subs 350(1A), subs 350(1) does not apply if the person who published the defamation proves that he or she had a reasonable ground for believing, and did believe, the relevant statement to be true. Mr Entsch’s argument assumes that the false and defamatory nature of Mr Hudson’s publications has been proven and that Mr Hudson has not satisfied subs 350(1A). Whilst the publications may have been defamatory, it has not been demonstrated that they were either true or false. The question has not really been addressed. Falsity must be proven before subs 350(1A) can be engaged. In any event, it may be arguable that Mr Hudson’s publications were of matters of opinion. Statements as to whether a person has been truthful or otherwise in a particular situation may often be matters of judgment. In the circumstances it is not necessary that I resolve this aspect of the matter.CONCLUSION Mr Entsch did not contravene subs 327(1), either directly or pursuant to subs 352(2). He also did not incite a contravention of s 327. Mr Hudson’s case depends upon his allegation of a contravention of subs 327(1). It must fail. For these reasons, at the end of the hearing, I dismissed the petition. I will hear submissions as to costs.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

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