Mulholland v Victorian Electoral Commission
[2011] VSCA 129
•13 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0041
| JOHN VINCENT MULHOLLAND | Applicant |
| v | |
| VICTORIAN ELECTORAL COMMISSION and KEVIN BUTLER | 1st Respondent |
| 2nd Respondent |
---
| JUDGES | TATE JA and MACAULAY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 May 2011 |
| DATE OF JUDGMENT | 13 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 129 |
| JUDGMENT APPEALED FROM | Mulholland v VEC and Anor [2011] VSC 89 |
---
APPEAL – Application for leave to appeal – Challenge to eligibility of delegates to vote at Democratic Labor Party (‘DLP’) State Conference – Rule 4 of DLP Rules requires that members must be ‘eligible to vote in Commonwealth elections’ – The addresses recorded on the Electoral Roll for two delegates differed from their residential addresses on date of State Conference – Whether those delegates were ‘eligible to vote in Commonwealth elections’ – New State Secretary elected by margin of one vote – Whether new Secretary was duly elected – Snowdon v Dondas (1996) 188 CLR 48, Rowe v Electoral Commissioner (2010) 85 ALJR 213, discussed – Commonwealth Electoral Act 1918, ss 93(2), 99 – leave to appeal granted.
---
| Appearances: | Counsel | Solicitors |
The Applicant in person | ||
| For the 1st Respondent | Mr C J Horan | Victorian Government Solicitor |
| The 2nd Respondent in person |
TATE JA:
On 6 May 2011, the Court (Tate JA and Macaulay AJA) heard an application for leave to appeal from the orders of Williams J made 18 March 2011. On that day the Court pronounced orders that leave was granted and an indication was given that the reasons would follow shortly. These are my reasons.
Disputed Election for the State Secretary of the DLP
On 18 March 2011, Williams J made orders dismissing an appeal from an order made by of the Victorian Civil and Administrative Tribunal (‘VCAT’) (Macnamara DP) on 3 December 2009. The order made by Macnamara DP was to affirm the determinations made by the Victorian Electoral Commission (’the Commission’) on 17 October and 18 December 2008. The determinations were made by Mr Tully, Electoral Commissioner.
On 17 October 2008 Mr Tully determined that he would ‘[p]rima facie … recognise Mr Mark Farrell as the secretary of the DLP [Democratic Labor Party], as chosen by the party conference.’ The consequence of the determination was that it was necessary for Mr Farrell to submit an application for re-registration of the DLP as a political party, pursuant to s 58A of the Electoral Act 2002, which he did. An additional consequence of the determination of which Mr Farrell and Mr Mulholland, the applicant in this proceeding, were informed was that the application that had been made by Mr Mulholland for re-registration of the DLP was not valid as he was no longer the party secretary at that time.
The determination made by Mr Tully on 18 December 2008 was that he accepted Mr Farrell’s application to change the name of the Registered Officer of the DLP of Australia on the Victorian register of political parties, pursuant to s 51 of the Electoral Act, from Mr John Mulholland to Mr Mark Farrell.
Mr Mulholland sought a review by VCAT of the determinations made by Mr Tully, on behalf of the Commission, under s 60 of the Electoral Act.[1] Relevantly, Macanamra DP affirmed the determinations by reason of the construction he afforded to Rule 4 of the DLP’s Constitution and Rules (‘the Rules’). Rule 4 provides:
The members shall be those eligible to vote in Commonwealth elections who are deemed by the Democratic Labor Party to be of like spirit and to identify with the principles, objectives and platform of the DLP.[2]
[1]The reasons of Macnamara DP indicate that there were two proceedings before VCAT, proceeding G837/2008 which sought review of an earlier decision, one made on 19 September 2008, by the Commission to refuse the application for registration submitted to the Commission by Mr Mulholland ‘as continuing secretary … pending the resolution of an internal party dispute’. This ultimately led to the determination on 17 October 2008 of which Mr Mulholland originally complained. The other proceeding before VCAT, proceeding G18/2009, was for review of the determination of 18 December 2008.
[2]Emphasis added.
The construction of this Rule, in its context, is relevant because Mr Mulholland has alleged that two people who attended the DLP State Conference at Richmond Library on 13 September 2008 voted for the party office holders, including the office of State Secretary, when they were not eligible to vote in Commonwealth elections. He argued before VCAT, Williams J, and at the hearing of the application for leave to appeal on 6 May 2011, that two of the people who attended the 2008 DLP State Conference, and voted, had electoral enrolment addresses (those recorded on the Commonwealth Electoral Roll) that did not match their residential address. His submission was that those people, Mr Dominic Farrell and Ms Claire Lindorff, did not meet the requirements under the Commonwealth Electoral Act 1918 to be eligible to vote in Commonwealth elections and thus were ineligible to vote in the election of the DLP’s State Secretary at the State Conference on 13 September 2008.
The submissions made by Mr Mulholland take place in the context of an internal party dispute within the DLP in which, as a result of the elections at the State Conference in 2008, in effect there was, as Macnamara DP put it:
[a] change [of] the guard. Mr Mulholland and [his] supporters … were according to the vote … defeated and a new guard led by Mr Butler as State President and Mr Mark Farrell as State Secretary was chosen.
Mr Butler is the second respondent to this application for leave to appeal.
The question of ineligibility was significant in the context of the office of State Secretary because the position was decided by a single vote.
The reasons of Macnamara DP
On the review, Macnamara DP considered the relevant legislative provisions of the Commonwealth Electoral Act. In particular, he considered s 93(2) which provides:
[A]n elector whose name is on the Roll for a Division is entitled to vote at elections of Members of the Senate for the State that includes that Division and at elections of Members of the House of Representatives for that Division.
Section 99 provides:
(1)Any person qualified for enrolment, who lives at an address in a Subdivision, and has lived at that address for a period of one month last past, shall be entitled, in respect of residence at that address, to have his or her name placed on the Roll for that Subdivision.
(2) Any elector whose name is on the Roll for any Subdivision and who lives at an address in any other Subdivision, and has lived at that address for a period of one month last past, shall be entitled, in respect of residence at that address, to have his or her name transferred to the Roll for the Subdivision in which he or she lives.
(3)Subject to [certain] sections … a person is not entitled to have his or her name placed on the Roll:
…
(b) for a Subdivision other than the Subdivision in which the person lives …
He also considered various authorities, including Snowdon v Dondas[3] where the High Court held that:[4]
There can be no right to vote without enrolment and enrolment depends upon being on the Roll of the District in which the person lives.
[3](1996) 188 CLR 48.
[4]Ibid 74.
Furthermore, in Snowdon the Court said:[5]
The position is as described by Brennan ACJ in Muldowney v Australian Electoral Commission:
‘[A] right to vote in an election for the Senate or the House of Representatives now depends entirely on the [Commonwealth Electoral] Act. That being so, the qualifications to vote must be found in the Act. By force of s 93(2), the qualifications include enrolment on a Roll for an Electoral Division. Indeed, the term ‘elector’ is defined by s 4(1) to mean ‘any person whose name appears on a Roll as an elector’. The only right to vote conferred by the Act is that conferred by s 93(2) and that right depends on the elector’s name being on the Roll for a Division.’
[5]Ibid 72 (footnotes omitted, emphasis in original).
The result in Snowdon was that many people whose names were not on a Roll for a District of the Division where they resided, but had previously been on a Roll for a District of the Division where they no longer resided, and from which there names had been removed,[6] were held to have had their provisional votes properly excluded from a Commonwealth election for the House of Representatives.
[6](1996) 188 CLR 48, 49, 69, 70.
In the light of the authorities, Macnamara DP stated that ‘with some hesitation’[7] he concluded that the election for the State Secretaryship of the DLP was not invalidated by reason of the discrepancy between Mr Dominic Farrell’s and Ms Claire Lindorff’s residential addresses and their addresses as recorded on the Commonwealth Electoral Roll on 13 September 2008. He adopted a generous construction of Rule 4 stating that:[8]
[N]o actual Commonwealth elections were taking place at that time or any time thereabouts at the time of the State Conference. In those circumstances I believe that a person could be regarded as eligible to vote in Commonwealth elections if that person’s eligibility was conditional upon completion of the formal step required to transfer enrolment from one subdivision to another under Section 99(2) of the Commonwealth Electoral Act 1918. This is the situation in which both of the challenged delegates found themselves at the time. They were credentialed as delegates for the appropriate electoral division in which they in fact resided.
[7](Unreported, VCAT, 3 December 2009), [57].
[8]Ibid [58].
The application for leave to appeal from Macnamara DP to J Forrest J
Mr Mulholland sought leave to appeal from the order of Macnamara DP, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998, and J Forrest J granted that leave on 16 April 2010,[9] on an appeal from Associate Justice Efthim, who had refused leave on 19 February 2010. J Forrest J noted that the Deputy President had arrived at the conclusion he did ‘with some hesitation’[10] and said:[11]
True it is that the question of the eligibility of the delegates turned upon an interpretation of Rule 4 of the DLP’s rules; however, there can be no doubt that the Deputy President’s determination in his review of the decision of the Commission turned, at least in part, on the application of provisions of the [Electoral] Act, on the construction of the Commonwealth Electoral Act 1918 as well as an analysis of several decisions of the High Court and of this Court.
… in my view the decision of the Deputy President is attended by sufficient doubt to warrant the grant of leave.
[9]Mulholland v Victorian Electoral Commission [2010] VSC 130.
[10]Ibid [14].
[11]Ibid [17]–[18] (footnotes omitted).
In granting leave, J Forrest J held that there was no utility in granting leave with respect to the decision of 17 October 2008 as the DLP had since been re-registered on the application of Mr Farrell, and there was no challenge to that re-registration. However, he considered that there was utility in leave being granted with respect to the decision of 18 December 2008 as the public record could be corrected if the election of Mr Farrell had been invalid. Forrest J thus allowed the appeal from Associate Justice Efthim only in part and granted leave to appeal the decision of Macnamara DP only in relation to the decision of the Commission of 18 December 2008 to change the registered officer of the DLP from Mr Mulholland to Mr Farrell.
The reasons of Williams J
Williams J upheld the construction adopted by Macnamara DP of Rule 4.
Her Honour considered that the construction adopted by Macnamara DP was the correct one[12] and that Mr Farrell and Ms Lindorff were members of the DLP at the time of the 2008 DLP State Conference even if they ‘were not “eligible to vote in Commonwealth elections” because of the mismatch between their residential and enrolled addresses’.[13] She considered that the constitution and rules of a political party should be interpreted in accordance with common sense and in order to give them practical effect. She further considered that Mr Mulholland’s construction of Rule 4 would appear to entail automatic termination or suspension of membership upon any change of residential address, even though transfer of enrolment could not be claimed for a month after that change. Her Honour concluded that such consequences would not be in the best interests of the DLP.
[12][2011] VSC 89, [62].
[13]Ibid.
In my opinion, the conditional construction of Rule 4 adopted by Macnamara DP, and affirmed by Williams J, is attended with sufficient doubt to warrant a grant of leave.
Not only has the construction her Honour adopted been one about which hesitation and doubt has already been expressed (by Macnamara DP and J Forrest J, respectively) but there must be doubt about its merits given that it has the result that the expression ‘eligible to vote in Commonwealth elections’ within the context of Rule 4 does not appear to reflect the requirements for eligibility under the Commonwealth Electoral Act yet it is the requirements under that Act that govern the eligibility to vote in Commonwealth elections. On this discrepancy, her Honour said:[14]
The Deputy President accepted that Mr Mulholland might have been correct in his contention that Mr Domenic Farrell and Ms Lindorff would not have been able to vote in a Commonwealth election held on 13 September 2008.
[14][2011] VSC 89, [32].
Her Honour’s construction may well be correct but the discrepancy between those matters must make that construction attended with sufficient doubt as to the correctness of the judge’s orders.[15]
[15]Koutroumanis v Transport Accident Commission [2009] VSCA 119, [7].
Furthermore, her Honour considered that the High Court decision in Rowe v Electoral Commissioner (2010) 85 ALJR 213, which had been handed down after the decisions of Macnamara DP and J Forrest J, was not supportive of Mr Mulholland’s submissions. Her Honour said:[16]
In my view, contrary to Mr Mulholland’s submissions, it appears implicit in the High Court’s conclusions in Rowe that the second plaintiff, whose name was on the electoral roll in one Federal electoral Division but who had failed to claim for a transfer to the electoral roll for the Division in which he lived, was still eligible to vote in the Federal electoral Division for which he was enrolled.
[16][2011] VSC 89, [56].
Her Honour’s reliance on Rowe would appear to be an alternative basis for the conclusion that Mr Farrell and Ms Lindorff were eligible to vote at the State Conference. On this view, the eligibility of Mr Farrell and Ms Lindorff would be secure without the need for the conditional construction adopted by Macnamara DP being placed on Rule 4. On the implication said to flow from Rowe, a person whose residential address had changed from the address recorded on the Commonwealth Electoral Roll would retain an entitlement to vote in Commonwealth elections in the division in which he or she was enrolled (that is, the former address), and thus would qualify for membership of the DLP (assuming the other requirements were satisfied).
In my opinion, there is doubt as to whether this implication can be drawn from Rowe. It is true that when concluding that relevant provisions of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), which, relevantly, had the effect of preventing transfers of enrolment of electors from 8.00pm on the third working day after the date the election writs were issued, were invalid, French CJ spoke about there previously having been a ‘period of grace’.[17]
[17](2010) 85 ALJR 213, [78].
However, this may be referring only to the statutory period of grace of seven days under the Electoral Act as that Act stood before the amendments, a period after the issue of the writs during which transfer was permitted. So too, as French CJ observed:[18]
Until 1983 an effective, albeit non-statutory, grace period had existed in all elections called since the 1930s by reason of the executive practice of announcing an election some days before the issue of the writs.
[18]Ibid [3].
This suggests that the period between the announcement of the election and the issue of the writs was a time during which transfer could be swiftly effected, not a time during which an elector would be permitted to vote for a division in which he or she had previously resided and remained enrolled.
At the hearing of the application for leave to appeal, Mr Horan, appearing on behalf of the first respondent, the Commission, took the Court to several other passages in the judgments in Rowe that he argued supported the implication drawn by Williams J. In Rowe the first plaintiff had turned 18 but had not yet enrolled to vote when the general federal election was called for 21 August 2010 and the second plaintiff had changed his residential address in March 2010 but had not transferred his enrolment. One of the passages to which Mr Horan referred was drawn from the judgment of Crennan J:[19]
The provisions operate in practice to exclude persons such as the first plaintiff from the right to vote, and persons such as the second plaintiff from the right to participate in choosing their correct parliamentary representatives.
[19](2010) 85 ALJR 213, 282 [373].
It was submitted that this passage implied that the second plaintiff was not disenfranchised from voting at all but rather from voting for a candidate in the division in which he now resided while being permitted to vote in the division in which he was enrolled (his former address). In my opinion, the passage in the judgment of Crennan J, and the other passages to which Mr Horan referred, are not unequivocal in the implications they permit to be drawn. I consider that the decision of Williams J, insofar as it was based upon the implication she drew from Rowe, is also attended by sufficient doubt to warrant a grant of leave to appeal.
I also consider that substantial injustice would arise if any error were left unreversed. Not only is there concern that the public record would otherwise be inaccurate but the nature of the error is one that goes to a core element governing the membership of the DLP of which both the applicant and respondent have held official positions and in relationship to which there has been a protracted dispute.
In my opinion, there should be a grant of leave to appeal, confined in a similar manner to that in which leave was restricted by J Forrest J: that is, confined to an appeal from the orders of Williams J relating to the decision of the Commission of 18 December 2008 to change the registered officer of the DLP from Mr Mulholland to Mr Farrell. Leave should be confined to the question of law relating to the interpretation of Rule 4 of the DLP Rules in the context of the election of the State Secretary of the DLP on 13 September 2008, recognising that this question of construction may involve, as J Forrest J said, questions relating to the construction of the Commonwealth Electoral Act and an analysis of several decisions of the High Court (including Snowdon v Dondas and Rowe).
The grounds of appeal should be confined to that issue alone.
MACAULAY AJA:
I agree with Tate JA.
---
7
4
0