Pavlekovich-Smith v Australian Electoral Commission

[1993] HCA 37

HIGH COURT OF AUSTRALIA

Dawson J

IVAN PAVLEKOVICH-SMITH v. AUSTRALIAN ELECTORAL COMMISSION

(1993) 115 ALR 641

17 August 1993

Orders

Petition dismissed.

Decision

DAWSON J By a petition under Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act") the petitioner, Ivan Pavlekovich-Smith, seeks the following relief:

"(i) That the 13 March, 1993 Federal Parliamentary Elections be declared absolutely void due to the fact that incumbent Members of Parliament had an advantage over other candidates. During the election campaign incumbent MP's used their tax payer funded Parliamentary entitlements/benefits to assist their and/or their party's election campaign. All other candidates received no such entitlements/benefits. (ii) That the 13 March, 1993 Federal Parliamentary Election be declared absolutely void due to interference with my political liberty to seek an injunction on the 5 March, 1993. (iii) That all candidates for future elections be treated equally according to democratic principles. (iv) That election funding by the tax payer be fairly distributed to all candidates. (v) That all candidates receive compensation for losses incurred in the event that the election is declared absolutely void. (vi) That a determination be made by the Court or by the Queen regarding the conduct of the election. i.e. Was each candidate given equal political rights according to democratic principles? (vii) That an independent investigation take place to determine why the Federal Attorney General's office never responded to my Notice of Constitutional Matter and why they have not responded to my appeal to investigate the Federal Court's refusal to accept my injunction application of 5 March 1993? (viii) That all costs be waived in relation to this matter due to financial hardship."

The petition is returnable before this Court sitting as the Court of Disputed Returns under s.354 of the Act.

2. The petitioner was an unsuccessful candidate for election to the Senate in the March 1993 general elections. He was at the time of the elections enrolled in the Division of Isaacs and, so far as the election of a member for the Division of Isaacs and the election of senators for Victoria are concerned, satisfied the requirement of s.355(c) of the Act that the petition "be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat".

3. The present proceedings are constituted by the return of a summons, taken out by the respondent, the Australian Electoral Commission, seeking orders that no proceedings be had on the petition on the ground that it does not comply with the requirements of s.355(a) and (aa) of the Act, that the petition be dismissed on the ground that the Court is not empowered to grant the relief sought and that the petition be dismissed in so far as it challenges the election of members of the House of Representatives for any Division other than the Division of Isaacs and the election of senators for States and Territories other than for the State of Victoria.

4. It is clear that the Court has no power under s.360 of the Act or otherwise to grant the relief sought in pars (iii) to (vii) of the petition and it is possible, therefore, for me to confine my attention to pars (i) and (ii).

5. Both paragraphs seek a declaration of the invalidity of the whole of the elections held on 13 March 1993 for membership of the Commonwealth Parliament and are not confined to the election of a member for the Division of Isaacs in which the petitioner was enrolled or to the election of senators for Victoria. The relief sought is for that reason beyond the jurisdiction of the Court of Disputed Returns. That conclusion is in accord with the view expressed by Brennan J in Muldowney v. Australian Electoral Commission in the following passage, with which I respectfully agree ((1) (1993) 114 ALR 513, at p 519.) :

"The framework of the Act as well as the language of s.355(c) indicates that the jurisdiction of the Court of Disputed Returns does not extend to the making of a declaration that the entirety of a general election is void. The jurisdiction to declare an election void on the petition of a person 'who was qualified to vote thereat' is limited to those elections in which the petitioner was an elector entitled to vote. If a challenge on justiciable grounds can be mounted to the validity of a general election - a question that I need not consider - such a challenge cannot be entertained by the Court of Disputed Returns ((2) Re Surfers Paradise Election Petition (1975) Qd R 114, at p 117, suggests that a similar conclusion was reached under the Elections Act

1915 (Q) by Dunn J sitting as an Election Tribunal.). It may be that the High Court has such a jurisdiction but that has not been decided: see the dicta of Gibbs CJ in McKenzie v. The Commonwealth of Australia ((3) (1984) 59 ALJR 190, at p 191; 57 ALR 747, at pp 749-750.)."

6. It is not, I think, possible to read down the relief claimed in the petition by confining it to the election of a member of the House of Representatives for the Division of Isaacs and the election of senators for Victoria. Clearly relief so confined is not what the petitioner seeks. That is sufficient to dispose of the matter but it is, perhaps, desirable that I deal with the submission that the petition does not comply with the requirements of s.355(a) of the Act.

7. Section 355(a) requires the petition to "set out the facts relied on to invalidate the election or return". Under s.358 no proceedings shall be had on the petition unless that requirement has been complied with. Moreover, no amendment of the facts relied on to invalidate the election or return will be allowed if, as is the case here, more than forty days have elapsed since the return of the writ for the election. Otherwise the amendment would in effect evade s.355(e) which requires the petition to be filed within that time ((4) Cameron v. Fysh (1904) 1 CLR 314, at p 316; In the Matter of a Petition by Helen Therese Berrill (1978) 52 ALJR 359, at p 360.). What is required by s.355(a) is that the petition should allege sufficient material or essential facts to justify an order invalidating the election or return ((5) Cole v. Lacey (1965) 112 CLR 45, at p 51; Nile v. Wood (1988) 167 CLR 133, at p 138.).

8. So far as the ground indicated by par.(i) of the prayer for relief is concerned, the facts relied upon appear with sufficient clarity. But the parliamentary entitlements or benefits to which the petitioner refers are not alleged to have been received or used otherwise than in accordance with the law. Indeed, elsewhere in the petition the petitioner concedes that the "benefits/entitlements are not illegal". The petitioner's complaint is that the entitlements or benefits constitute an advantage which candidates who were not sitting did not have. Even allowing that to be so, it provides no basis for an order invalidating an election or return. It does not, therefore, allege facts which would justify the grant of relief.

9. The facts relied on in relation to the ground indicated by par.(ii) of the prayer for relief appear elsewhere in the petition and are as follows:

"The Constitution states in section 1 that: The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which (is) herein-after called 'The Parliament' or 'The Parliament of the Commonwealth'. I appealed directly to the Queen to 'do what is necessary in order to achieve a democratic election.' Since The Parliament consisted of the Queen....etc, then I had in fact raised the issue of a disputed election in Parliament and under section 47 of The Constitution the Queen or her representative would be responsible to determine the question/appeal. ... On 5 March 1993 I made an application in the Federal Court seeking an injunction to suspend the Federal Parliamentary Elections until the appeal was determined. ... The Federal Court refused to accept my application citing Order 46 Rule 7A - Abuse of Process. I have a note signed by the District Registrar Peter Seccombe stating that 'Justice Jenkinson refuses to accept or issue the document submitted by me or any document in the same terms.' I requested a formal explanation for the refusal. ... A Federal Court letter dated 22 March (9 days after the polling day) was received by me stating that 'his honour does not propose to provide written reasons to' my note requesting an explanation for refusal to accept my application. I believe that my political liberty to seek an injunction was hindered or interfered with and under section 327 of the Commonwealth Electoral Act 1918, I petition the Court of Disputed Returns to grant the reliefs I seek."

Section 327(1) provides:

"A person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act."

10. Upon any view of the facts relied on by the petitioner, it does not appear that the refusal of the Federal Court to entertain the petitioner's application hindered or interfered with the free exercise or performance of any political right or duty that was relevant to the elections in question. Even if the Federal Court had jurisdiction to entertain the application ((6) Berrill v. Hughes (1984) 59 ALJR 64, at pp 65-66, would suggest that because it was not a Court of Disputed Returns, it did not.), the petitioner fails to demonstrate any basis upon which that Court should have exercised its jurisdiction in the manner sought by the petitioner. It follows that insufficient facts are set out to justify the grant of relief on this ground.

11. For these reasons the petition should be dismissed.