Palmer United Party v Victorian Electoral Commission

[2014] VSC 588

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No proceeding number

PALMER UNITED PARTY (a registered political party)	Applicant
v
VICTORIAN ELECTORAL COMMISSION	Respondent

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JUDGE:	Bongiorno JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2014
DATE OF JUDGMENT:	14 November 2014
CASE MAY BE CITED AS:	Palmer United Party v Victorian Electoral Commission
MEDIUM NEUTRAL CITATION:	[2014] VSC 588

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STATUTES – Interpretation – Mandatory provisions – Declaration, injunction and prerogative relief – Urgent relief – Parliamentary election – Ineligible candidate – Relief refused – Electoral Act 2002, ss 69, 70, 74, 98, 99 – Constitution Act 1975, s 44

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A F Solomon-Bridge	HopgoodGanim, Brisbane
For the Respondent	Mr S G E McLeish SC, Solicitor-General for the State of Victoria Mr L Brown	The Victorian Government Solicitor

HIS HONOUR:

1. On 6 November 2014, Jason Grant Kennedy signed a nomination form as a candidate for election to the Legislative Council for the South Eastern Metropolitan Region in the forthcoming State election.  On that form he stated that he was not disqualified by virtue of the Constitution Act 1975 from being elected a member of the Legislative Council and declared that he was in fact qualified. In fact, he was not so qualified because on 21 November 1989, at the age of 19, he was convicted or found guilty of recklessly causing injury, an indictable offence, then carrying a maximum penalty of seven years’ imprisonment, and now carrying a maximum penalty of five years’ imprisonment. He was fined $1500. Section 44(3) of the Constitution Act 1975 disqualifies persons from election to either house of Parliament who, whilst of or over the age of 18 years, are convicted or found guilty of an indictable offence carrying a maximum gaol term of five years or greater.

1. Mr Kennedy is a member of the Palmer United Party, a registered political party that has endorsed candidates for the forthcoming election, including him.  He is one of the PUP’s endorsed candidates for the Legislative Council seat referred to above.  The PUP now approaches this Court for a declaration that Mr Kennedy is disqualified from election and that as a consequence his name should be now withdrawn as a candidate.  The application has been made in haste because today is the last day for nomination of candidates for the forthcoming election and is significant having regard to the various provisions of the Electoral Act 2002 (‘the Act’) that regulate the process by which Victorian State elections are to be conducted.

1. So far as it is relevant to the problem created by Mr Kennedy’s nomination, s 69 of the Act requires a political party that endorses candidates for election to the Legislative Council to provide to the Electoral Commission before noon on the day before the last day for nominations (that is to say, in this case, yesterday) a form entitled ‘Request for Group Nomination’. This form must be accompanied by a list of candidates in the party’s group, and may specify the order in which it wishes the candidates to be listed as between themselves. The PUP duly provided that form to the Commission. It showed Mr Kennedy as being the PUP’s number one candidate for the South Eastern Metropolitan Region.

1. Section 74 of the Act provides that as soon as practicable after noon on the final day for nomination (that is to say, today) an official known as the election manager must put into effect a process whereby the order in which candidates or groups of candidates will appear on the ballot paper is determined by lot. Section 74(3A) requires the Commission to have ballot papers printed in a statutory form in accordance with the election manager’s determination. The first of these steps must be taken by the election manager as soon as practicable after noon on the relevant day. The printing of the ballot papers must follow immediately so that from 4.00pm on the same day persons who qualify as ‘early voters’ pursuant to s 98 of the Act may apply to vote ‘early’ as prescribed by s 99.

1. As the Court understands it, these steps have all been by now taken and 4.00pm on the final day for nomination has now passed, thereby triggering the operation of s 99 of the Act to commence the early voting period. It commences at 4.00pm today and ends at 6.00pm on the day before polling day.

1. Mr Solomon-Bridge of counsel, for the PUP, sought a declaration that Mr Kennedy was disqualified from standing as a candidate at the election and consequent declarations and/or injunctions or orders in the nature of prohibition and mandamus against the Commission to achieve the result that his name be removed from the ballot paper; the ballot papers be reprinted without his name; and the processes required by ss 74(1), 74(3A) and 99 of the Act be postponed until these matters were attended to.

1. Mr Solomon-Bridge put two principal contentions in support of his case. His first was that the provisions of the Act, which set out the procedure the Commission must follow in preparation for an election, are directory only and not mandatory. Thus, the time lines prescribed by the Act can, in effect, be altered by the Court by its granting one or other of the remedies he sought, especially, perhaps, by an injunction.

1. But the requirements of the Act are not merely directory or discretionary. The sections referred to are mandatory. They clearly impose statutory obligations on the Commission and its officers. That Parliament intended it to be so is evident not only from the language in which the provisions are expressed but also by their descending into what, in another context, might be regarded as unnecessary detail. I refer to the noon deadlines for certain actions to be taken and the specific requirements of sections, such as s 63, concerning the period fixed for certain events to occur. Other sections of the Act impose obligations clearly designed to ensure that the election process runs to a very tight and predictable schedule. This Court would be itself failing to obey statutory prescriptions if it characterised the relevant provisions as directory or discretionary only. Even if it were possible for the Court to ignore such prescriptions, it would not be appropriate for it do so in the present circumstances. The effects of Mr Kennedy’s errant nomination can be corrected, if he is elected, by the post-election process for removal set out in s 45 of the Constitution Act 1975, which provides ample opportunity for removal of an unqualified member of either house before he takes his seat.

1. The second major contention Mr Solomon-Bridge relied upon was that s 70 of the Act conferred on the Commission the power to reject Mr Kennedy’s nomination, even at this late stage. He argued that s 70(a) should be construed as enabling the Commission to reject his nomination because it contained an incorrect statement and an incorrect declaration as to his entitlement to sit as a member of Parliament. Further this Court should, now, by an order in the nature of mandamus compel the Commission to do so.

1. The Solicitor-General, for the Commission, argued that, viewed as a whole, s 70 should be construed as regulating the Commission’s power to reject a nomination only in respect of formal defects in the nomination process. Accordingly, he contended that s 70(a) was concerned with the form of the nomination, not the correctness of the statement made or the declaration contained in it.

1. I cannot accept the applicant’s contention. To construe the section as it contends would place the burden of ascertaining that the statement and declaration were correct upon the Commission. Nowhere in the Act is such an obligation imposed. I accept the Solicitor-General’s argument that s 70 is concerned with formal compliance with the Act and nothing else. Section 70 confers power to reject a nomination form if it does not comply with s 69. Here, the declaration made by Mr Kennedy complied with s 69(2)(c) even if the declaration was, in fact, false. To require or even permit the Commission to make inquiries into a candidate’s background, not only in Victoria but elsewhere, to ascertain whether he has been truthful in his declaration, would place an intolerable burden on the Commission within a very restrictive time frame carefully prescribed by the Act.[1]

   [1]Section 44(3) of the Constitution Act 1975 refers to indictable offences ‘under the law of Victoria or under the law of any other part of the British Commonwealth of Nations’.

1. I conclude that there is no basis on which the Court should grant the relief sought by the PUP.  It will be a matter for it, and perhaps the Commission, to determine what, if any, notification is given to the public as to Mr Kennedy’s ineligibility to take his seat in the Legislative Council, should he be elected.

1. The urgent application by the PUP will be dismissed.  The order is made as if on an appropriate proceeding commenced by the PUP for the relief sought and the PUP must immediately pay any applicable Court fees.

1. There being no application for costs there will be no order as to costs.