McClure v Australian Electoral Commission

HIGH COURT OF AUSTRALIA

HAYNE J

MALCOLM McCLURE  PETITIONER

AND

THE AUSTRALIAN ELECTORAL COMMISSION          RESPONDENT

AND

PHILIP JONES & ORS  PARTIES JOINED

McClure v Australian Electoral Commission [1999] HCA 31

24 June 1999
M119/1998

ORDER

Petition dismissed with costs.

Representation:

Petitioner appeared in person

S J Gageler for the respondent (instructed by Australian Government Solicitor)

J T Shiels (instructed by GSM Lawyers) for Kelly Buzza (a party joined)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

McClure v Australian Electoral Commission

Elections – Senate – Court of Disputed Returns – Petition disputing validity of half Senate election – Validity of Commonwealth Electoral Act 1918 (Cth), ss 211, 211A – Deposit lodged pursuant to s 170 – Whether unsuccessful candidate entitled to refund – Powers of Court pursuant to CommonwealthElectoral Act 1918 (Cth) – Remedies.

Constitutional law – Implied constitutional rights – Freedom of communication about political matters – Whether entitles election candidate to media coverage.

The Constitution, ss 7, 24.
Commonwealth Electoral Act 1918 (Cth), ss 170, 211, 211A, 355, 358, 362, 364.

1. HAYNE J. Section 353(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Act") provides that:

   "The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise."

   This Court is the Court of Disputed Returns[1].  The petitioner has filed an election petition which, it is said, "concerns the election of the Half Senate for the Commonwealth of Australia in the State/Territory of Victoria held on 3rd October 1998".  The writ for the election is alleged to have been returned on 29 October 1998.  The petitioner was a candidate at that election; he was not elected.

   [1]s 354(1).

2. The validity of Div 1 (ss 352-375A) of the Act was unsuccessfully challenged in Sue v Hill[2].

   [2][1999] HCA 30.

3. The respondent has applied for orders that the petition be dismissed, or that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court.

4. More than 380 appearances have been entered, apparently on behalf of persons who claim to have voted or to have had the right to vote at the election to which the petition relates[3].  When the respondent's application first came on for hearing the application had not been served on any of the persons who had entered an appearance.  The further hearing of the application was adjourned.  I directed that notice of the application would be given sufficiently if a short form of notice were sent by post to persons appearing.  That notice told the recipient that a copy of the summons, affidavit in support, and the respondent's outline of submissions could be inspected at the Registry.

   [3]High Court Rules, O 68 r 6(1).

5. Only two of the persons to whom notice was given appeared on…