Jeffery v Roberts

[2001] NSWADT 66

CITATION:	Jeffery & Ors -v- Roberts [2001] NSWADT 66
DIVISION:	General Division
PARTIES:	APPLICANTS Victor Robert Jeffery Jack Ireland Barry Clendinning William Coombe RESPONDENT Lennard Roberts
FILE NUMBER:	003306
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	11/28/2000
DATE OF DECISION:	04/27/2001
BEFORE:	Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member
APPLICATION:	Dismissal from civic office - Local Government Act - dismissal from civic office
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conciliation and Arbitration Act 1904 (Cth) Local Government (Elections) Regulation 1998 Local Government Act 1993 Parliamentary Electorates and Election Act 1912
CASES CITED:	Evans -v- Crichton-Browne (1981) 147 CLR 169 Smith -v- Oldham (1912) 15 CLR 355 R -v- Grey; Ex Parte Marsh (1985) 157 CLR 351 Bourne -v- Murphy (1996) 92 LGERA 329 In Re Collins; Ex Parte Hockings (1989) 167 CLR 522
REPRESENTATION:	In person In person
ORDERS:	1. The Tribunal has jurisdiction to entertain this application.; 2. This matter to be set down for hearing at a date to be determined by the Registrar

REASONS FOR DECISION

1 On 18 September 2000 the applicants, Messrs Victor Robert Jeffery, Jack Ireland, Barry Clendinning and William Coombe, filed an application with the Administrative Decisions Tribunal under s 329 of the Local Government Act1993 (the Act) seeking an order that the respondent, Mr Lennard Roberts be dismissed as a councillor of the Great Lakes Local Council (the Council). This is a decision “on the papers,” pursuant to s.76 of the Administrative Decisions Tribunal Act , 1997 (the Tribunal Act) concerning the Tribunal’s jurisdiction to entertain this application.

2 At a directions hearing on 24 October 2000 before Deputy President Hennessy, the parties were directed to file and serve submissions on the issue of the Tribunal’s jurisdiction to entertain this application. Specifically the parties were asked to address whether the words contained in s. 329 of the Act, “any irregularity in the manner in which the person has been elected or appointed to that office” extended to “irregularities” that occurred prior to polling day.

Background

3 Following the resignation of a councillor of the Great Lakes Local Council a by-election was conducted by the Electoral Commissioner to fill that vacancy. The polling day was 1 July 2000 and on 5 July 2000 the poll was declared, proclaiming the respondent, Mr Lennard Roberts, elected as councillor.

4 The applicants assert that various acts by the respondent during the conduct of the election, amount to irregularities within the meaning of s. 329 of the Act. First, it is alleged, that in contravention of r.109 of the Local Government (Elections) Regulation 1998 (the Regulations), the respondent placed a misleading electoral advertisement in the M anning Great Lakes Extra , wrongly stating it was “Authorised by Peter Thompson.” According to the applicants, the respondent sought to gain an electoral advantage from this purported endorsement by Mr Thompson, a popular councillor widely known within the electorate. In addition, the applicants claim that had candidate Ireland been aware of this alleged fraudulent representation, he would not have directed his preferences to the respondent. This, assert the applicants, would have changed the outcome of the ballot.

5 Second, the applicants submit that the respondent held himself out, in the course of the election as endorsed by, or enjoying the support of, the National Party. This, assert the applicants, is contrary to the information provided by the respondent in the Candidate Information Sheet, completed pursuant to s.308(1) of the Act. The applicants submit that both matters constitute offences under Part 10 of the Regulations.

Relevant Legislative Provisions

6 Section 329 of the Act is headed ‘Can the holder of a civic office be dismissed?’ and relevantly provides:
(1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office.
(2) On any such application, the Tribunal may order the dismissal of a person from civic office:
(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or
(b) if the person is disqualified from holding civic office.


7 The Act and Regulations prescribe in detail the way in which local council elections are to be conducted.

8 Regulation 109 prohibits the printing of false information and relevantly provides:
(1) A person must not do any of the following:
(a) …
(b) print, publish or distribute a “how to vote'' card, electoral advertisement, notice, handbill, pamphlet, or card, containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote,
Maximum penalty: 10 penalty units.
(c) print, publish or distribute a ``how to vote'' card, electoral advertisement, notice, handbill, pamphlet or card using:
(i) the name, an abbreviation or acronym of the name or a derivative of the name of a party respectively included in the Local Government Register of Parties (or a name or abbreviation resembling such a name, abbreviation, acronym or derivative) in a way that is intended or likely to mislead any elector, or
(ii) the word “Independent” and the name or an abbreviation or acronym of the name or a derivative of the name of a party respectively included in that Register in a way that suggests or indicates an affiliation with that party (unless the name of the party in that Register includes the word “Independent”).
Maximum penalty: 10 penalty units.

(2) A person is not guilty of an offence against this clause merely by printing, publishing or distributing a “how to vote” card which contains instructions on how to vote for a particular candidate or candidates, so long as those instructions are not intended or likely to mislead an elector in or in relation to the casting of his or her vote.

Conclusions


9 The jurisdiction of this Tribunal to entertain an application made pursuant to s.329 of the Act is dependent on an application alleging an irregularity in the manner in which a person has been elected . It may be that, the ground or grounds on which the applicants rely, are shown to be unsustainable. However, that does not deprive the Tribunal of jurisdiction.

10 The public policy behind s.329 is obvious. It is that elections shall be conducted regularly, fairly and lawfully. The ultimate aim is not only to maintain the confidence of the electorate in the integrity of the electoral system but to maintain the system’s integrity itself. In short, it is designed to prevent “rorting”, or “Tammany Hall” style corruption of our democracy.

11 In Evans v Crichton-Browne (1981) 147 CLR 169 (at 204) the High Court approved the dicta of Isaacs J in Smith v Oldham (1912) 15 CLR 355 (at 362) where he said:
The vote of every elector is a matter of concern to the Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgement different from that which he would have formed and registered had he known the real circumstances.

12 The first issue for us to consider is the meaning of the word “elect” in s. 329. Neither the word “elect” nor the noun, “election” is defined in the Act or the Regulations.

13 The Macquarie dictionary defines “elect” to mean: “ to select by vote, as for an office.”

14 Section 148 of the Parliamentary Electorates and Election Act 1912 provides some guidance as what is meant by the word “elect”. (Regulations 106, 107, 108,110 of the Local Government (Elections) Regulation 1998 , employ the definition as set out in s148 of the Parliamentary Electorates and Election Act 1912 ). Headed Extended meaning of term “candidate”, s. 148 provides:
….And the words at an election , at any election , and during any election shall mean and include the whole period from the day of nomination up to the day on which the returning officer or the Electoral Commissioner, as the case may be, publishes and declares the result of such election, both days inclusive.

15 It would, in our view, be inappropriate to confine the scope of s. 329 to the polling day itself. The Act deals with the electoral process, which culminates in the taking of a poll. Any irregularity which occurs during the electoral process is, in our view potentially at least, caught by s.329.

16 The next issue for us to consider is the meaning of the phrase “irregularity”. While not defined in the Act, the word “irregularity” has been the subject of considerable judicial interest. In R v Grey; Ex parte Marsh (1985) 157 CLR 351 Gibbs CJ, in discussing the meaning of “irregularity” in relation to an election for officer bearers for a union said, at 367-368:
The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election.

17 Some “irregularities” may be regarded as minor, and as having little or no effect on the integrity of the electoral process itself, or any particular election. Others will be so manifestly egregious that the election of the candidate simply cannot stand if the integrity of the system and the particular election is to be maintained. It will all depend on the circumstances of the case. Beazley JA in Bourne v Murphy (1996) 92 LGERA 329 (at 358) makes clear that to amount to an irregularity within the meaning of s. 329 of the Act the irregularity must affect the outcome of the election:
However I am of the opinion that it is not any irregularity which suffices for the purpose of s. 329. Rather it must be an irregularity such that the result of the election is thereby uncertain.

18 We turn now to consider the phrase “the manner in which the person has been elected”. It is apparent that this phrase catches what are commonly considered to be the formal steps relating to an election, such as the process of nomination, conduct and declaration of the poll. In Bourne v Murphy for example, it was held that the Returning Officer’s failure to count formal votes in a local council election constituted an irregularity for the purpose of s. 329.

19 The question arises as to whether the phrase “the manner in which the person has been elected” can be said to extend to all matters relating to the election of the successful candidate. Guidance as to the breadth of this phrase, can be found in In Re Collins; Ex Parte Hockings (1989) 167 CLR 522. There, the High Court considered whether the use of union resources to promote a ticket in a union election could be said to amount to an “irregularity in or in connection with an election” within the meaning of that term in Part IX of the Conciliation and Arbitration Act 1904 (Cth). The Court held (applying Evans v. Crichton-Browne (1981) 147 CLR 169) that it is not “in or in connection with an election” if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll.

20 It is our view that notwithstanding the different wording of s 329 of the Act and Part IX of the Conciliation and Arbitration Act1904 , the High Court’s decision in In Re Collins; Ex Parte Hockings provides useful guidance as to the approach we should take to defining the ambit of s329.

21 The matters of which the applicants claim relate to breaches of the Act and Part 10 of the Regulations. Headed “Offences,” Part 10 makes it an offence to do certain acts in relation to an election. It may be that in some cases the only consequence of a proven breach of Part 10 will be the penalty as relevantly prescribed. However it is our view that, any breach of the Act or the Regulations, germane to the conduct of an election, will, prima facie, constitute a relevant irregularity.

22 As to whether the matters complained of by the applicants relate exclusively to “steps taken to affect voting intention” and do not go to “the manner in which [the respondent] has been elected” is a matter of fact of critical relevance to this application.

23 The allegations made by the applicants relate to alleged breaches of the Act and the Regulations. That some of the alleged acts, occurred prior to polling day does not of itself deprive the Tribunal of jurisdiction. In our view it is enough that the alleged irregularities relate to the election, as that term is defined in s 148 of the Parliamentary Electorates and Election Act 1912 . As to whether these acts, if proven, relate to the “manner in which [the respondent] has been elected” is a matter of fact and law. It is our view that on their face, these allegations relate to an irregularity pursuant to s. 329 and consequently this Tribunal has jurisdiction to entertain this application.

Orders

(1)The Tribunal has jurisdiction to entertain this application.
(2) This matter to be set down for hearing at a date to be determined by the Registrar.