Osborne v Febey

[1987] TASSC 26

TASSC A14/1987

CITATION:            Osborne v Febey [1987] TASSC 26; A14/1987

PARTIES:  OSBORNE
  v
  FEBEY

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 5/1987
DELIVERED ON:  20 March 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Cox J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  
           Respondent:  
Solicitors:
           Appellant:  
           Respondent:  

Judgment Number:  TASSC A14/1987
Number of paragraphs:  9

Serial No A14/1987
  File No LCA 5/1987

OSBORNE v FEBEY

REASONS FOR JUDGMENT  COX J

20 March 2007

1. This is a notice to review a penalty of $1,000 fine imposed upon a candidate for election to the Legislative Council for failing to submit to the Chief Electoral Officer a return of his electoral expenditure within the time allowed by the Electoral Act 1985 ("the Act"). Section 198 of that Act provides:

"198 – Within 60 days after the day on which the result of a Council election is declared, or within such extended period, not exceeding 30 days, as the Chief Electoral Officer may allow, every candidate at the election shall sign and declare before a justice and file with the Chief Electoral Officer a true return of his relevant electoral expenditure in accordance with Form 15 in Schedule 1 –

(a)showing particulars of –

(i)all such expenditure that has been paid by the candidate or paid on behalf of the candidate by an election agent of the candidate; and

(ii)all disputed claims and all unpaid claims against the candidate in respect of any such expenditure; and

(b)accompanied by a receipted bill for each item of expenditure referred to in paragraph (a) that exceeds $10."

1. The poll in question was declared on the 16 April 1986 and the following day the Chief Electoral Officer sent a letter to the applicant advising him of the above requirement and supplying two copies of the appropriate form for that purpose. The Chief Electoral Officer was not asked to, and did not, exercise his discretion to allow any additional time and the necessary return was not filed by the 16 June 1986 when the 60 days allowed by the Act expired. On the 3 July 1986 the Chief Electoral Officer received a telephone call from the applicant claiming to have sent the return within 48 hours of its receipt and requesting the despatch of another form. This form was sent by the Chief Electoral Officer on the same day to the address nominated by the applicant. The form, although dated the 18 July 1986, was not received by the Chief Electoral Officer until the 24 July 1986. Even then it was not accompanied by the receipts required by s198 for the items of expenditure exceeding $10.

1. In mitigation it was said that the applicant was a 41 year old man who was making his first foray into politics, that he was a person of excellent character with no previous convictions of any kind, that he was a business man with heavy work commitments requiring him to make overseas trips and that during part of the 60 days from the declaration of the poll he had been on a working trip to the United States of America. It was submitted that he had collected all the necessary detail, prepared the form and that he believed he had despatched it to the Chief Electoral Officer. It was established however that whatever had happened to the form it had not reached that officer and had in any event two defects, namely that it had not been declared before a Justice of the Peace and had not been accompanied by the receipts.

1. Upon his return from America he had been told that his name had appeared in the newspaper as a candidate who had failed to lodge the return in time and that prompted the telephone call to the Chief Electoral Officer I have mentioned. The learned magistrate was told by counsel for the applicant that he had also been changing accommodation and was in correspondence with a large number of clients and thought that the first form had possibly been included in error among documents sent to one of them. It was submitted further that the applicant believed he did not have to produce receipts if he submitted the form. In substance it was submitted that the applicant had merely been inadvertent, that it was not a serious breach and the learned magistrate was invited to deal with him under the provisions of the Probation of Offenders Act 1973.

Section 203(4) of the Act provides:

"(4)      A candidate who, without reasonable excuse, fails to comply with section 198 within the period prescribed by that section, or, where the Chief Electoral Officer has allowed that period to be extended, within that extended period, is guilty of an offence and is liable on summary conviction to a penalty not exceeding $20,000."

1. A similar obligation to file a return existed under the repealed Electoral Act 1907. The penalty provision which covered not only a breach of the corresponding section, but also breaches of any of the provisions of the Part relating to the limitation of electoral expenses, provided for a penalty of $200 or six months' imprisonment.

1. In my view the passing of new legislation providing for a maximum penalty of $20,000 clearly signified Parliament's view that the filing of a return of electoral expenses was a serious obligation on every candidate. Courts of summary jurisdiction were given a wide discretion to be exercised judicially to determine the appropriate penalty in any given case and obviously the maximum penalty would be intended to be reserved for the worst kind of breach. Nevertheless the penalty provision is such as to show that prima facie breach of the obligation is intended to be the subject of a primarily deterrent sentence. As the offence is only committed where the candidate fails to comply with s198 "without reasonable excuse" it is hard to see it being committed without some degree of personal blameworthiness on the part of the offender.

1. In the circumstances of this case, the applicant's failure to carry out the obligation could not properly be described as mere inadvertence. It is to be expected that those who aspire to represent their fellow citizens as elected members of the Legislature should at least familiarise themselves with the electoral laws relevant to their candidacy. In the applicant's case he was reminded by the Chief Electoral Officer of his obligation soon after the poll was declared and he was furnished with the necessary draft form. On his own admission the form he thought he had submitted was not signed before a Justice of the Peace nor accompanied by the required receipts. When he discovered the form had not been sent or had gone astray he made no application to the Chief Electoral Officer for an extension of time. It then took him a further three weeks to have the form delivered to that officer and even then it was still not accompanied by the receipts.

1. In my opinion this was clearly not an appropriate case in which to resort to the Probation of Offenders Act 1973. The character and antecedents of most candidates who have any expectation of being successful are likely to be good in any event; the offence is by no means trivial in nature and, given that there was no reasonable excuse for failing to file a return and the facts to which I have referred, it could not be said that there were any significant extenuating circumstances.

1. It has not been suggested that the fine of $1,000 was beyond the applicant's capacity to pay. It is of course a substantial amount, but so too is the sum of $5,250 which a candidate may lawfully expend in an endeavour to secure his election. Relatively therefore a fine of such an amount does not on its face seem a disproportionate sum. Had the failure sprung from a deliberate refusal to file the return for whatever motive, a substantially higher fine might well be in order to deter such an offender from repeating the offence and others from emulating him. In my view the fine imposed was within the proper exercise of the learned magistrate's sentencing discretion. It was not manifestly excessive and no other error on his part has been established. The appeal is dismissed.