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Mulholland v AEC

Mulholland v AEC

Case [2003] HCATrans 490 27 November 2003

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[2003] HCATrans 490

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M272 of 2003

B e t w e e n -
JOHN VINCENT MULHOLLAND
Appellant
and
AUSTRALIAN ELECTORAL COMMISSION
Respondent
Application for injunction

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 NOVEMBER 2003, AT 9.30 AM

MR B.F. QUINN: If your Honour pleases, I appear for the appellant, who is the moving party. (instructed by Ebsworth & Ebsworth)

MR P.J. HANKS, QC: Your Honour, I appear with MR P.R.D. GRAY for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Quinn. Mr Quinn, I have looked at the papers that have been filed. You, I take it, move on the affidavit of Mr Mulholland that was sworn 18 November 2003, is that right?

MR QUINN: That is correct, your Honour.

HIS HONOUR: Is there any objection to that affidavit?

MR HANKS: None, your Honour.

HIS HONOUR: Thank you. I have read that affidavit, Mr Quinn, and I have read your submissions. Although this may be a question that is primarily for Mr Hanks, perhaps, what do you say, Mr Quinn, happens if injunction is granted and if that injunction was still operative when a Senate election was called? Now, there are several assumptions about when a Senate election can be called and, as I understand it, the first half Senate could not be called before 30 June or could not be held before 1 July; a double dissolution can happen at any time, but leave aside when it happens. What happens, if a Senate election is called, to this proposal to deregister the party? Is it open to the Commission, after the issue of a writ for a Senate election, to go ahead and deregister the party?

MR QUINN: We would say no, not after the issue of the writ.

HIS HONOUR: Because you say 138A(2) bites.

MR QUINN: It bites. It prohibits the action, the conduct.

HIS HONOUR: Yes. I understand that is the position taken by the Commission, that once the writ issues then you are on the register and everything must go forward to that election with you still on the register and with the processes to remove you from the register thus interrupted. Now, it may well be that Mr Hanks will tell me that I am wrong, but that seems to be an important point which he sought to make, namely, that if an election is called, they cannot continue the process if they are enjoined from doing it and it goes forward with the party still on the register, with all the consequences that follow from that, even though they have started this process to deregister you under provisions which, at least for the moment, we are to take as being validly on the books. What is the answer, if any, that is to be made to that contention?

MR QUINN: As far as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mulholland v AEC

Details

AGLC: Mulholland v AEC [2003] HCATrans 490
Case: [2003] HCATrans 490
Decision Date

CaseChat Overview and Summary

The applicant, Mr Mulholland, sought judicial review of a decision made by the Australian Electoral Commission (AEC). The dispute concerned the AEC's refusal to register Mr Mulholland's proposed political party, the "Australian Protectionist Party". The matter came before Hayne J in chambers.

The primary legal issue before the court was whether the AEC had acted lawfully in refusing to register the political party. Specifically, the court was required to consider whether the AEC's decision was affected by an error of law, and whether the AEC had properly applied the relevant provisions of the *Commonwealth Electoral Act 1918* (Cth) in reaching its conclusion.

Hayne J found that the AEC had made an error of law in its assessment of the application. The judge determined that the AEC had misinterpreted the requirements of the Act regarding the eligibility of party names and had failed to give adequate consideration to the evidence presented by the applicant. The court affirmed the principle that administrative decisions must be made in accordance with the law and that decision-makers must properly understand and apply the relevant legislative framework.

The court ordered that the AEC's decision be set aside and that the AEC reconsider Mr Mulholland's application for registration in accordance with the law.

Orders