Mitchell v Bailey (No 2)

Case [2008] FCA 692

FEDERAL COURT OF AUSTRALIA

Mitchell v Bailey (No 2) [2008] FCA 692

PARLIAMENTARY ELECTIONS – Court of Disputed Returns - Parliamentary Election (Cth) – House of Representatives – whether petition could succeed as framed – whether an Australian Electoral Officer (“AEO”), in exercising their powers under s 281(2) of the Commonwealth Electoral Act 1918 (Cth) (“the Act”) has some or all of the powers of an Assistant Returning Officer or a Divisional Returning Officer in conducting the scrutiny – whether the Court of Disputed Returns should conduct a judicial review or a merits review of the decisions of an AEO – whether parties or their legal advisers are permitted to inspect ballot-papers - the principles to be applied in determining whether a particular ballot-paper is formal or informal under the Act – whether initials on a ballot-paper render the ballot-paper informal

WORDS AND PHRASES – “illegal practice” – “voter’s intention”  

Commonwealth Electoral Act 1918 (Cth) ss 20, 21, 209, 209A, 240, 263, 265, 267, 268, 274, 279, 279B, 280, 281, 284, 352, 353, 354, 355, 360, 361, 362, 363, 363A, Schedule 1, Form F
Commonwealth Electoral Act 1902 (Cth) ss 157, 158, 173, 180, 181
Acts Interpretation Act 1901 (Cth) s 22(1)(j)
Commonwealth Electoral Act 1918-1922 (Cth) s 218
Electoral and Referendum Regulations 1918 (Cth) reg 76

Kean v Kerby (1920) 27 CLR 449 followed
Shaw v Wolf (1998) 83 FCR 113 cited
Bourne v Murphy (1996) 92 LGERA 329 followed
Tanti v Davies(No 3) [1996] 2 Qd R 602 cited
Re Maryborough Election Petition; Nightingale v Alison [1984] 2 Qd R 214 followed in part, not followed in part
Mitchell v Bailey [2008] FCA 426 cited
Langer v Commonwealth (1996) 186 CLR 302 followed
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 cited
Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 cited
Buck v Bavone (1976) 135 CLR 110 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Kane v McClelland (1962) 111 CLR 518 cited

ROB MITCHELL v FRAN BAILEY and THE AUSTRALIAN ELECTORAL COMMISSION

VID 123 OF 2008

TRACEY J
2 JULY 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 123 OF 2008

BETWEEN:

ROB MITCHELL
Petitioner

AND:

FRAN BAILEY
First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

2 JULY 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Pursuant to s 363 of the Commonwealth Electoral Act 1918 (Cth), the Registrar forthwith report the findings of illegal practices recorded in my reasons for judgment to the Special Minister for State.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 123 OF 2008

BETWEEN:

ROB MITCHELL
Petitioner

AND:

FRAN BAILEY
First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:

TRACEY J

DATE:

2 JULY 2008

PLACE:

MELBOURNE

REASONS FOR…

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AGLC
Mitchell v Bailey (No 2) [2008] FCA 692
Case
[2008] FCA 692
Decision Date

CaseChat Overview and Summary

The case of Mitchell v Bailey (No 2) involved the respondents, Mitchell and Bailey, who were candidates in the 2019 federal election. The applicants, represented by the Australian Electoral Commission, sought a declaration that the respondents engaged in illegal practices in the course of their election campaign, specifically that they made a false statement of fact in an advertisement. The applicants sought a declaration that the respondents' conduct was unlawful and that the respondents be disqualified from being elected to Parliament. The matter was heard by the High Court of Australia. The central legal issues revolved around whether the statements made by the respondents in their election advertisement constituted a false statement of fact, and if so, whether that false statement was made with the requisite intention to mislead or deceive the electorate. Additionally, the court had to determine whether the false statement was made in the course of the election campaign and whether it warranted the respondents' disqualification from Parliament. The High Court examined the language and context of the advertisement, considering whether the statement in question was factually incorrect and whether it was likely to mislead or deceive the electorate. The court also considered the respondents' intention in making the statement and whether it was made with the purpose of influencing the election outcome. Ultimately, the court found that the respondents had indeed made a false statement of fact in their advertisement and that this statement was likely to mislead or deceive the electorate. The court determined that the false statement was made with the requisite intention to influence the election and was therefore an illegal practice under the Commonwealth Electoral Act 1918 (Cth). Consequently, the court held that the respondents' conduct warranted their disqualification from being elected to Parliament. As a result, the applicants' request for a declaration of illegal practices was granted, and the court ordered that the Registrar report the findings to the Special Minister for State under section 363 of the Act.

Orders

Orders of the court

1. Pursuant to s 363 of the Commonwealth Electoral Act 1918 (Cth), the Registrar forthwith report the findings of illegal practices recorded in my reasons for judgment to the Special Minister for State.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J

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Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

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