Pettit v Atkinson

[1994] FCA 307

HERB PETTIT v. CLIVE ATKINSON AND AUSTRALIAN ELECTORAL COMMISSION
No. VG11 of 1994
FED No. 307/94
Number of pages - 15
Aborigines

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
GRAY J

CATCHWORDS

Aborigines - Aboriginal and Torres Strait Islander Commission - Regional Councils - Elections - disqualified candidate declared elected - multi-member proportional representation - how vacancy should be filled - whether casual vacancy - whether fresh election for one member or count or recount of votes cast to determine successful candidate - application of rules relating to casual vacancies with modifications - whether costs should be awarded.

Aboriginal and Torres Strait Islander Commission Act 1989 ss. 4, 91, 92, 100, 101, 102, 104, 113, 121, 140. Schedule 2, 3, 4.

Regional Council Election (Casual Vacancies) Rules Commonwealth of Australia Gazette S298 No. 3 of 1990.

Regional Council Election Rules Commonwealth Government Gazette N28 of 187/90 (amendment: Commonwealth Government Gazette S293 of 299/93).

Commonwealth Electoral Act 1918 ss. 352, 362, 365.

In Re Wood (1988) 167 CLR 145.

HEARING

MELBOURNE, 11 May 1994
#DATE 20:5:1994

Solicitor for the Petitioner: Ian Polak

Counsel for the Petitioner: Mr. D. Hore-Lacy

Solicitor for the First Respondent: Kahn and Clahr

Counsel for the First Respondent: Mr. S. Palmer

Solicitor for the Second Respondent: Australian Government

Solicitor

Counsel for the Second Respondent: Dr. S.C. Kenny

ORDER

The Court declares that:

Clive Atkinson was not duly elected as a regional councillor of the Ballarat Regional Council of the Aboriginal and Torres Strait Islander Commission for the Tumbukka Ward and that there remains one place on the Ballarat Regional Council to be filled from the Tumbukka Ward.

The Court orders that:

1. The regional returning officer undertake further counting or recounting of the ballot papers cast for candidates in the Tumbukka Ward for election to the Ballarat Regional Council of the Aboriginal and Torres Strait Islander Commission for the purpose of determining the candidate entitled to be elected to the place for which Clive Atkinson was returned.

2. Such further counting or recounting of the ballot papers be conducted as nearly as practicable in accordance with the provisions of the schedule to the Regional Council Election (Casual Vacancies) Rules, with the following modifications:

(a) the words "the former member" be read as "Clive Atkinson";

(b) the words "continuing unsuccessful candidate" be read as a reference to an unsuccessful candidate;

(c) clause 3(b)(iii) be disregarded;

(d) the words "who have made a declaration under sub-rule 6(1)" and the words "who has made a declaration under sub-rule 6(1)", wherever appearing, be disregarded.

3. All proceedings at the count and recount be open for the inspection of any scrutineers appointed by the unsuccessful candidates.

4. Upon the completion of the further counting or recounting the regional returning officer declare elected the candidate identified as having received an absolute majority of votes as a result of that further counting or recounting.

5. Liberty is reserved to any party to apply to the Court on seven days' notice in writing to each other party.

6. The notice of motion filed on 2nd May 1994 is dismissed.

7. The petitioner pay the costs of the first respondent and the second respondent of the notice of motion filed on 2nd May 1994.

8. The first respondent pay the petitioner's costs of the petition.

9. The first respondent's costs of the notice of motion filed on 3rd May 1994, ordered to be paid by the petitioner on 5th May 1994, and the first respondent's costs of the notice of motion filed on 2nd May 1994 be set off against the petitioner's costs of the petition and the balance be paid by the first respondent to the petitioner.

10. The petitioner's deposit of $100.00 be repaid to the petitioner.

(NOTE: Settlement and entry of orders is dealt with by O. 36 of the Federal Court Rules.)

JUDGE1

GRAY J Section 92 of the Aboriginal and Torres Strait Islander Commission Act 1989 ("the Act") establishes a regional council for each of 36 regions into which Australia is divided pursuant to s. 91(1). One such region is the Ballarat Region. The boundaries for the regions are determined from time to time by the Minister for Aboriginal and Torres Strait Islander Affairs in writing, pursuant to s. 91(1)(b) and must be notified in the Commonwealth of Australia Gazette ("the Gazette"), pursuant to s. 91(1A).

1. On 27th September 1993, the Minister made a determination pursuant to s. 91(1)(b), changing the boundaries of the regions. The determination was published in the Gazette on 28th September 1993. For the purposes of this proceeding, the relevant effect of the determination was to change the boundary between the Ballarat Region and its neighbouring region, the Wangaratta Region.

2. Pursuant to s. 100A, regional council election rules may provide for the division of a region into wards and set out the boundaries of each ward. A ward may be designated to elect a single member or a number of members of the regional council. One of the wards designated for Ballarat Region is the Tumbukka Ward. It has a common boundary with the Goulburn Valley Ward, which is in the Wangaratta Region. The Tumbukka Ward is designated as a ward to elect eleven members of the Ballarat Regional Council.

3. Division 4 of Part 3 of the Act provides for regional council elections. Section 100 requires that such elections be conducted by the Australian Electoral Commission in accordance with the provisions of the Act and the regional council election rules ("the election rules") in force at the beginning of the election period. Such election rules are made by the Minister, after consultation with the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner: see s. 113(1). Under s. 101, a person is entitled to vote at a regional council ward election if and only if the person is an Aboriginal person or a Torres Strait Islander and either the person's name is on the Commonwealth Electoral Roll and the person's place of living as shown on that roll is within the ward concerned or the person is entitled to vote at the election pursuant to rules made under s. 113(3). Those rules relate to a person whose name is on the electoral roll but whose place of living or address is not shown on that roll.

4. By notice dated 30th September 1993, published in the Gazette on 1st October 1993, the Minister fixed 4th December 1993 as the day for polling in a round of regional council elections. The notice was given pursuant to s. 104(2) of the Act. The regional returning officer, an officer of the Australian Electoral Commission, then called for nominations, by 12.00 noon on 3rd November 1993, in accordance with the election rules. Forty-four nominations were received for the Tumbukka Ward. Among them were the petitioner, Herbert Pettit and the first respondent, Clive Atkinson. Each of these two candidates made a request, in accordance with the election rules, to be grouped with certain other candidates on the ballot paper. On 3rd November 1993, an officer of the Australian Electoral Commission publicly produced all the nominations received by her in respect of the Tumbukka Ward and declared the name and the residence of each of the nominated candidates. This action was required by r. 20 of the election rules.

5. It should be noted that, by r. 13, the person nominated must consent to act if elected and declare, among other things, that he or she is qualified to stand for election under s. 102 of the Act. Section 102(1) provides:
   

"A person is not qualified to stand for election, or to be elected, as a member for a Regional Council ward if:

(a) the person is not entitled to vote at the Regional Council ward election concerned;

(b) the person does not live in the ward;

(c) the person is a member of the staff of, or a consultant to, the Commission;

(d) subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer;

(e) subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer;

(f) the person is bankrupt; or

(g) there is in operation a composition, deed of arrangement or deed of assignment with the person's creditors under the law relating to bankruptcy."

1. Rule 15 of the election rules provides relevantly as follows:
   

"(1) Subject to subrule (2), a nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of rules 9, 10, 13 or 14 have not been complied with in relation to the nomination.

(2) No nomination is to be rejected by reason of any formal defect or error in the nomination if the officer to whom the nomination is made is satisfied that the provisions of rules 9, 10, 13 and 14 have been substantially complied with."

Rule 9 relates to the form of nomination. There is a requirement that the candidate's name, occupation, place of residence and postal address be set out and that the nomination be signed by no less than four electors, other than the candidate, who are enrolled in respect of the ward for which the candidate is nominated. Rule 10 provides to whom and when the nomination must be made. Reference has already been made to r. 13. Rule 14 provides that in relation to the candidate's consent to act if elected, and his or her declaration as to eligibility to stand, it is sufficient if the candidate signs the form of consent and declaration at the foot of the nomination paper, although other forms of consent and declaration may be accepted.

1. The first respondent's form of nomination complied with all of the requirements of rules 9, 10, 13 and 14. In particular, it contained declarations that he was entitled to vote in the ward he wished to represent and that he lived in the ward he wished to represent. It gave as his address "RMB 928 Bangerang Rd., Echuca Village, 3564". This is also the address for which the first respondent was enrolled under the Commonwealth Electoral Act 1918, the enrolment having been accepted on 20th October 1993. At all relevant times, the first respondent lived in Echuca Village. This was the subject of a concession by his counsel at the hearing of the petition.

2. Echuca Village was not within the Tumbukka Ward. It was within the Goulburn Valley Ward, in the Wangaratta Region. Accordingly, the first respondent was not qualified to stand for election, or to be elected, as a member for the Tumbukka Ward, on each of the grounds specified in s. 102(1)(a) and (b) of the Act. Although this information was ascertainable from the first respondent's nomination form, the regional returning officer had no power to reject his nomination under r. 15. Nor was there any other source of such power. Accordingly, the first respondent's name was placed on the ballot paper, with those of the candidates with whom he had requested to be grouped.

3. Pursuant to r. 83 of the election rules, the method of voting used at regional council elections is optional preferential voting. The voter must mark the ballot paper by placing the number 1 in the square opposite the name of the candidate for whom he or she votes as a first preference. The voter may (but need not) place further consecutive numbers in squares opposite the names of some or all of the remaining candidates, so as to indicate the order of his or her preferences for them.

4. On 4th December 1993, a total of 506 votes were cast in the Tumbukka Ward. Twenty-seven of these were informal. The remainder were admitted to the count.

5. Schedule 2 to the Act contains the method of counting votes and determining successful candidates at elections for two or more members for a regional council ward. Under cl. 3 of that schedule, a quota is determined by dividing the total number of first preference votes by one more than the number of candidates to be elected and by increasing the quota so obtained (disregarding any remainder) by one. Any candidate who has received a number of first preference votes equal to or greater than the quota is elected. If there remain vacancies, the surplus votes of each elected candidate are transferred to the continuing candidates at a transfer value determined by dividing the number of surplus votes of an elected candidate by the number of first preference votes received by him or her. The total number of ballot papers expressing a first preference for the elected candidate and the next available preference for a particular continuing candidate are multiplied by the transfer value and the number so obtained is added to the number of first preference votes of the continuing candidate. A similar process continues until all the vacancies have been filled. Clause 8 of schedule 2 makes provision for the circumstance that no candidate has, or fewer than the number of candidates required to be elected have, received a number of votes equal to the quota. In such a case, the candidate who stands lowest in the poll is to be excluded and the next available preferences for that candidate are transferred at a transfer value of one vote to the continuing candidates.

6. At the counting of votes for the Tumbukka Ward, the quota was determined to be forty. No candidate received a quota of first preference votes. The process therefore commenced of excluding the candidates who stood lowest in the poll and transferring their votes to continuing candidates. After the completion of counting of votes, thirty-two candidates were excluded and their votes were transferred. At that stage, there were six vacancies remaining to be filled and seven candidates still in the count. The petitioner stood lowest in the poll and was therefore excluded. His votes were not transferred as the remaining candidates equalled the number of remaining vacancies. The regional returning officer then declared elected eleven candidates, including the first respondent.

7. By s. 140 of the Act, the provisions of schedule 4 apply where there is a dispute in relation to a regional council election. Clause 2 of schedule 4 provides that the validity of any election, or of the declaration of a poll for an election, may be disputed by a petition addressed to the Court and not otherwise. The Court is given jurisdiction to try election petitions, which jurisdiction may be exercised by a single judge of the Court. The word "Court" is defined by cl. 1(1) to mean the Federal Court of Australia. By cl. 3(e), a petition is required to be filed in the registry of the Court within forty days after the end of the election period. The election period is defined in s. 4(1) of the Act as ending on the last day on which a poll is declared in relation to an election in that round of regional council elections.

8. On 20th January 1994, the petitioner filed in the Victoria District Registry of the Court his petition. He relied on the first respondent's ineligibility on the grounds specified in s. 102(1)(a) and (b) of the Act. He sought orders declaring that the first respondent was not duly elected and that his position was vacant, directing that the next eligible candidate fill the vacancy, and awarding costs to the petitioner. Orders were also sought directing that the elections of Chairperson of the Ballarat Regional Council and Commissioner for Victoria be held over until such time as the petition was heard. The petition came before the Court for directions on 8th February 1994, on which date it was ordered to be amended by the deletion of the orders sought relating to the holding over of elections. The second respondent, the Australian Electoral Commission, was added as a party to the proceeding.

9. On the hearing of the petition on 10th May 1994, it was conceded, as I have said, that the first respondent was disqualified by s. 102(1)(a) and (b) of the Act from standing for election or being elected as a member for the Tumbukka Ward. There was no dispute that a declaration should be made pursuant to cl. 10(1)(e) of schedule 4 to the Act that the first respondent was not duly elected. The Court's power to make such a declaration is constrained by cl. 12(3) of the schedule. The clause provides as follows:
   

"(3) The Court shall not declare that any person returned was not duly elected, or declare any election void:

(a) on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority; or

(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

1. The phrase "illegal practice" is defined in cl. 1(1) of the schedule as meaning, "a contravention of this Act, the Regional Council election rules or the zone election rules". Reference should also be made to cl. 14(1) of the schedule, which provides, "No election shall be avoided....on account of the....error of or omission by any officer which did not affect the result of the election." In Sykes v. Australian Electoral Commission (1993) 115 ALR 645, at pp 650-652, Dawson J, sitting as a court of disputed returns, discussed the relationship between ss. 362(3) and 365 of the Commonwealth Electoral Act 1918, which are in form identical with the provisions of cls. 12(3) and 14(1) of schedule 4. His Honour held that a wrongful rejection of a nomination fell within the definition of "illegal practice" in s. 352(1) of the Commonwealth Electoral Act 1918, which is substantially similar to the definition of "illegal practice" in schedule 4, to which I have referred. Although the wrongful rejection of a nomination would have constituted an error or omission, and therefore have fallen within the provision corresponding with cl. 14(1), his Honour held that the more specific provision, which corresponded with cl. 12(3) was operative.

2. In the present case, it is clear that cl. 12(3) must be applied. The acceptance of the first respondent's nomination did not involve any error or omission on the part of the returning officer. This is because of the limited power which the returning officer had under r. 15 of the rules to reject a nomination. Nevertheless, the acceptance of the first respondent's nomination and his participation in the ballot involved a contravention of s. 102(1)(a) and (b) of the Act and therefore amounted to an illegal practice. It should be noted that the term "illegal practice" is a defined expression, carrying with it no necessary inference of moral blame. It is easy to understand that the first respondent may have been confused by the change of regional boundaries which occurred shortly prior to the conduct of the regional council elections and may have made a mistake in lodging his nomination for the Tumbukka Ward. His participation in the election nonetheless constituted an illegal practice.

3. That illegal practice did not involve bribery or corruption or attempted bribery or corruption. It is a difficult question whether it was committed by any person other than the first respondent, within the meaning of cl. 12(3)(a). The fact that the returning officer lacked power to reject the nomination suggests that the illegal practice cannot be regarded as having been committed by her. On the other hand, it might be said that the lodging of a nomination by a disqualified person does not amount to an illegal practice; it is only the participation of such a person in the ballot which so amounts. Perhaps the true view is that the illegal practice, if not committed by the first respondent, was committed by someone other than him, but with his knowledge or authority, in the sense that he was aware of the facts which gave rise to the illegal practice.

1. In any event, by reason of cl. 12(3)(b), the Court cannot declare that the first respondent was not duly elected unless it is satisfied of two things. The first is that the result of the election was likely to be affected. The second is that it is just that the candidate should be declared not to be duly elected. The first of these conditions is plainly satisfied. If the first respondent had not been a candidate, he could not have been declared elected, so that the result of the election was affected. The justice of declaring the first respondent not to have been duly elected is also manifest. Although it might be said that the will of the electorate was reflected in the election of the first respondent, and that his candidature was the result of a mistake on his part, it is nonetheless the case that the electorate cannot have forced upon it a representative who is ineligible. The Court will therefore make a declaration to the effect that the first respondent was not duly elected.

2. The issue which was controversial on the hearing of the petition was as to what orders the Court should make consequent upon that declaration. The powers of the Court, which are set out in cl. 10 of the schedule 4 to the Act, are very broad. By sub-clause (2), they may be exercised "on such grounds as the Court in its discretion thinks just and sufficient." The object of the Court should be to give effect, as far as is possible, to the will of the electorate. Counsel for the first respondent contended that this would be done by declaring vacant the position of the first respondent on the Ballarat Regional Council and ordering a new election for one person to represent the Tumbukka Ward. Counsel for the petitioner and counsel for the second respondent contended for a further count or recount of the votes already cast, by the application of the Regional Council Election (Casual Vacancies) Rules ("the casual vacancies rules").

3. The casual vacancies rules were notified in the Gazette on 15th November 1990. They are made pursuant to s. 113(1)(b) of the Act, which gives the Minister a specific power to make rules prescribing "the manner in which casual vacancies in Regional Councils are to be filled (including, but not limited to, the holding of by-elections)." The scheme of the casual vacancies rules involves a recount of the votes cast at the preceding regional council election. Excluded from that recount are preferences expressed for the person whose position is the subject of the casual vacancy, other persons who were elected and unsuccessful candidates who have not declared in writing that they remain qualified under s. 102 of the Act to be elected and that they consent to act if elected. The casual vacancies rules are not directly applicable to the present case; by their terms, they apply to casual vacancies caused by resignation, death or the making by the Aboriginal and Torres Strait Islander Commission of declarations under ss. 121(1), 121(3) and 122(1) of the Act. Those provisions relate to members of regional councils becoming ineligible to be members on various grounds. They do not apply to a person who has been wrongly declared elected because of a disqualification existing at the time of the election.

4. The controversy in the present case raises the issue of how the will of the electorate is to be ascertained when the election is conducted in a multi-member, proportional representation constituency. The High Court of Australia, sitting as a court of disputed returns, dealt with that question in In Re Wood (1988) 167 CLR 145. That was a case in which a person had been declared elected as a senator for the State of New South Wales in an election for twelve senators for that State. That person was not an Australian citizen. A combination of s. 16 of the Constitution and s. 163(1)(b) of the Commonwealth Electoral Act 1918 required that a senator be an Australian citizen. At pp. 162-163, the court said:
   

"As Senator Wood was not an Australian citizen prior to 3 February 1988, he was not entitled to be nominated for election as a senator: s. 163 of the Act. His election and return could not create the legal capacity to be a senator which s. 163 denies. Section 16 of the Constitution makes the qualifications prescribed by s. 163 of the Act the qualifications "of a senator" and a constitutional requirement that senators possess those qualifications is thus created. The constitutional requirement is not satisfied by a de facto election and return of a candidate who does not possess the prescribed qualifications. A de facto election and return are therefore ineffective to confer the legal status of senator on an unqualified person though of necessity the return must be treated as having some effect. In Vardon v. O'Loghlin (1907) 5 CLR 201 p 208, Griffith CJ, speaking for the Court, said that when the election of a person returned as a senator is invalid "the return is regarded ex necessitate as valid for some purposes unless and until it is successfully impeached. Thus the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title. But the application of this rule is co-extensive with the reason for it. It has no application as between the sitting senator and any other claimant for the place which he has taken, or as between him and the electors, by whom he was not in fact chosen." Or, it might be added, "by whom he could not lawfully have been chosen".

1. At pp. 164-165, the court said:
   

"A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ (Drinkwater v. Deakin (1874) LR 9 CP, at p 638) because Senator Wood was incapable of filling the twelfth place. That is not to say that, putting to one side "a mere abuse of the right of nomination or an obvious unreality" (Harford v. Linskey (1899) 1 QB 852, at p 862 and cf. Pritchard v. Mayor, etc. of Bangor 1888 13 App Cas 241), the Electoral Officer who makes a return has authority himself to determine the qualifications of a candidate (who declares and maintains that he is duly qualified: s. 170(a)(ii) of the Act) or to refuse to return the name of an otherwise successful candidate whose qualifications are in issue: see s. 172 of the Act and Evans v. Thomas (1952) 2 QB 350. But the performance by the Electoral Officer of his ministerial functions in these respects does not determine the validity of the return or the efficacy of the election of an unqualified person to a vacant place in the Senate."

1. The court then discussed the manner in which the place which had been left unfilled should be filled. At pp. 165-166, the court said:
   

"The purpose of the poll is to choose in accordance with the Act the preferred candidates who are qualified to be chosen, but no effect can be given for the purpose of the poll to the placing of a figure against the name of a candidate who is not qualified to be chosen: an indication of a voter's preference for an unqualified candidate is a nullity. That is not to say that the ballot papers are informal. An unqualified candidate who has been duly nominated, that is, one whose nomination complies with the formal requirements of the Act, is a candidate whose name is properly included on the ballot paper. But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter's preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity. It is only to the extent that s. 16 of the Constitution invalidates the particular indication of preference that effect is denied to the voter's expressed intention. It is as though the unqualified candidate were deceased:"

1. The court then discussed and rejected three possible methods of filling the vacancy. The first was a supplementary election for the unfilled place. This was rejected as inappropriate because it would be "in effect preferential voting for a single member constituency, not by proportional voting for a multiple member constituency. The manifest purpose of the proportional voting scheme of the Act would be liable to be frustrated if a further poll were taken in which the quota would be more than 50 per cent of the votes cast." (at p. 166). The second proposal was for conduct of an election for twelve senators for New South Wales. The court rejected this on the basis that the election of the eleven persons duly returned was not then open to challenge. The court pointed out that an election is not avoided merely because an unqualified candidate stands. If that were so, the nomination of unqualified candidates would play havoc with the electoral process, especially where the returning officer has no general power to refuse a nomination in due form. The presence of the unqualified candidate's name on the ballot paper did not falsify the declared choice of the electors for the other candidates. The third proposal was to invoke the casual vacancy provisions in s. 15 of the Constitution. This was rejected on the simple ground that no casual vacancy had occurred. The disqualified candidate had not obtained a place which had become vacant. The court held that the vacant position of senator could be filled by completing the election after a further count or recount of the ballot papers.

2. In my view, the principles stated in In Re Wood are applicable to the present case. The election for the Tumbukka Ward has not been completed because the first respondent was disqualified from being declared elected and the declaration that he was elected has been challenged. The distinction which counsel for the first respondent attempted to make between a constitutional disqualification in the case of a senator and a statutory disqualification in the case of a regional council member is not valid. In each case, the disqualification was real. To order that an election be held for all eleven regional councillors representing the Tumbukka Ward would be to disregard the time limit for the lodging of petitions disputing the validity of elections or declarations of polls, specified in cl. 3(e) of schedule 4 to the Act. That time limit is forty days after the end of the election period. A definition of "election period" appears in s. 4(1) of the Act. The period ends on the last day on which a poll is declared in relation to an election in that round of regional council elections. It is common ground that that time has expired. The election of the other ten regional councillors of the Tumbukka Ward is now no longer open to question. None of them is party to this proceeding; none has been given notice that an order would be sought to unseat him or her. Finally, as I have said, no casual vacancy has occurred. The first respondent not having been validly elected to the position for which he was declared elected, he cannot vacate it by any of the means which give rise to casual vacancies.

3. It must be conceded that any order which the Court can now make for the filling of the vacant position will produce some distortion of the expression of the electorate's will. The High Court in In Re Wood took the view that the distortion produced by a single member preferential election would be greater than that produced by a count or recount in which votes cast for the disqualified candidate were disregarded. In the present case, counsel for the first respondent argued that greater distortion would be produced by the fact that the system of voting is optional preferential, rather than the compulsory preferential system operating in a senate ballot, and that this case was therefore to be distinguished from In Re Wood. A voter in the senate ballot considered in that case was given a choice between numbering every square beside the name of a candidate on the ballot paper and inserting a single number in one square, to signify a vote according to a predetermined set of preferences lodged by or on behalf of a group candidates. In either case, the voter was expressing a numbered preference for every candidate on the ballot paper. It is permissible, but unnecessary, to express a preference for any candidate in regional council elections. Thus, counsel for the first respondent argued that there might be ballot papers containing only the number "1" beside the name of the first respondent and that those voters would be denied any effect for their votes if a further count or recount were held.

4. It is true that no count of such votes would be possible. The number of them cannot have been great, as first respondent (along with all other candidates) failed to achieve the quota of forty first preference votes. It would have been possible to ascertain exactly how many such votes there were, but counsel for the first respondent took no step to do this. In the circumstances, the degree of distortion of the electoral will produced by a further count or recount of the kind contemplated by the High Court of Australia In Re Wood does not appear to be likely to be greater than that produced by the calling of a single member election, with the possibility of a large number of candidates striving to achieve a quota of 50 per cent of the valid votes cast.

5. I am therefore of the view that I should follow the course followed in In Re Wood and order that the vacant position to which the first respondent was declared elected should be filled by a further count or a recount of the votes already cast. In reaching that conclusion, I have not been influenced by evidence on behalf of the second respondent to the effect that a fresh election for a single member would take in excess of three months to complete and would cost approximately $62,000.00, whereas a recount according to the procedure laid down in the casual vacancies rules would take less time and would cost approximately $500.00. If it were necessary to conduct a further election to ascertain the will of the electorate, time and expense ought not to be considerations, except perhaps if a further round of general elections is to take place within a short time. It is unnecessary for me to consider what would be the position if there were competing, equally valid methods of ascertaining the electoral will, one of which was substantially more expensive and time consuming than the other. What is significant is that the legislature, by s. 113(1)(b) of the Act has authorised the making of rules which permit casual vacancies to be filled otherwise than by by-elections. The Minister, in the exercise of the power given by that provision, has seen fit to make rules which provide for the filling of casual vacancies otherwise than by further election. Although those rules are inapplicable to the present case, their existence supports the legitimacy of the course which results from following In Re Wood.

6. Counsel for the second respondent submitted initially that I should order that the recount be conducted according to the procedures laid down in the casual vacancies rules. As I have said, those procedures include the giving of advice to unsuccessful candidates that there is to be a recount and the seeking of written declarations from them as to their continuing qualification to be elected and their continuing consent to act if elected. Any candidate not providing such a declaration by a specified time is to be excluded from the count. Those provisions are appropriate for the filling of casual vacancies, which might occur at any time during the term of office of a regional council. They are not appropriate when what is sought is to ascertain the will of the electorate as at the original polling day with respect to the unchallenged candidates. If written declarations were sought, and for any reason a candidate failed to make one, that candidate's exclusion would produce a greater than necessary distortion in the ascertainment of the expression of the voters' preferences.

7. But for that difficulty, the procedure for a recount laid down in the schedule to the casual vacancies rules is appropriate to the conduct of a recount. I propose to order that it be followed with appropriate modifications.

8. Counsel for the second respondent also sought initially a declaration that the candidate determined in accordance with a further count or recount was duly elected as a regional councillor for the Tumbukka Ward. The High Court of Australia declined to make such an order in advance of the recount in In Re Wood, at p 169. It adjourned the matter before it for the making of submissions dealing with any further function of the court. Subsequently, the Chief Justice gave further directions as to the conduct of the further counting and recounting of ballot papers. Later still, the Chief Justice declared another candidate duly elected as a senator for New South Wales for the place for which Senator Wood was returned. In the present case, there seems to be little point in requiring the parties to return to the Court for the making of such a declaration. To do so would only occasion more costs. The appropriate course seems to be to direct the returning officer to declare elected the successful candidate, following the further count or recount.

9. It was submitted that the result of such a course might be to have another disqualified candidate declared elected. That is a possibility. Given the lack of power of the returning officer to reject a nomination in proper form, the possibility of disqualified candidates participating in the ballot, as the first respondent did, is a real one. The qualification of the candidates can now no longer be tested by petition, because the time limited by cl. 3(e) of schedule 4 to the Act has expired. The possibility of the declaration of a further disqualified candidate was one of the grounds on which counsel for the first respondent opposed the course of determining the successful candidate by further count or recount. It should be noted that the same possibility existed in In Re Wood. In the present case, the Aboriginal and Torres Strait Islander Commission has its powers under ss. 121 and 122 of the Act to declare that it is satisfied that a member of a regional council has ceased to be qualified for such membership on various grounds, and thereby to produce a vacancy which can be dealt with under the casual vacancy rules. In addition, the Minister has power under cl. 17 of schedule 4 to the Act to refer to this Court any question respecting the qualifications of a member of a regional council and the Court has jurisdiction to hear and determine the question, which may be exercised by a single judge. Clause 21 gives the Court the same wide powers as it has in relation to a disputed election under cl. 10, with the additional powers to declare that any person was not qualified to be a member of a regional council and to declare that there is a vacancy in a regional council. By these means, it will be possible to prevent a disqualified candidate from being a member of the Ballarat Regional Council for the Tumbukka Ward.

10. I therefore propose to order that the vacant place be filled by further count or recount in accordance with the procedure set out in the schedule to the casual vacancies rules, with appropriate modifications. I shall reserve liberty to apply in case any difficulty is encountered which needs to be resolved by the Court.

11. On 2nd May 1994, the petitioner filed a notice of motion, returnable on the day of the trial of the petition, moving the Court for various orders. They included an order that all meetings and business of the "Tumbukka Regional Council" be held over until the final determination of the petition and orders that the Aboriginal and Torres Strait Islander Commission and Robert Egan be joined as respondents. Orders were also sought amending the relief sought in the petition, so that the petition would include a prayer for an order that the positions of the first respondent and those candidates who stood with him as a group be declared vacant. These applications were not pursued. They were bound to fail. Section 117(1) of the Act provides:
    

"Persons elected, or declared to have been elected, as members of a Regional Council otherwise than at a by-election to fill a casual vacancy:

(a) take office as members at the end of the election period concerned; and

(b) hold office, subject to this Part, until the end of the next election period."

1. This provision makes it clear that even an ineligible person who is declared to have been elected is to take office and to hold office unless and until there is some challenge to the result of the election or some other event in accordance with Pt. 3 of the Act which causes him or her to cease to hold the office. Further, cl. 27(3) of schedule 4 to the Act makes it clear that the validity of anything done by a regional council is not affected by the fact that a person has since ceased to be a member of a regional council because of a declaration made by the Court under the schedule. There is a clear legislative intention that the Court is not to interrupt the business of a regional council because of an allegation that a person is disqualified.

2. The attempt to challenge the election of other candidates with whom the first respondent stood as a group (which included Robert Egan) could not be made, because of the expiry of the time limit expressed in cl. 3(e) of schedule 4. There was also sought an order declaring invalid the election of officers within the Aboriginal and Torres Strait Islander Commission or the regional council in which the first respondent and Robert Egan had participated. Apart from the provisions of cl. 27(3) of schedule 4, there was a complete absence of material suggesting that participation of the first respondent, or of any other member of the regional council, had any effect on the results of those elections. The notice of motion must be dismissed. Mr. Robert Egan appeared by his solicitor and consented to the withdrawal of the notice of motion so far as it affected him. He did not seek costs. Both respondents sought costs of the notice of motion. The petitioner should be ordered to pay the costs of the notice of motion of each of the respondents. They will be costs related to preparation and not to the hearing, because the petitioner did not proceed with the notice of motion on its return day.

3. The question of costs of the petition has caused me some difficulty. Counsel for the second respondent submitted that there should be no order as to the costs of any party. The High Court of Australia made no order as to costs in In Re Wood. The petitioner sought an order for costs against the first respondent, who resisted the making of such an order.

4. One matter which the first respondent sought to make relevant to the question of costs was an affidavit of his, suggesting that he had received incorrect advice from an officer of the Australian Electoral Commission at the Shepparton Electoral Office that he was eligible to nominate for the Tumbukka Ward and that he had relied on this advice in standing. The giving of such advice was denied on affidavit by two persons who were officers in the Shepparton Electoral Office at the time. It was not possible for me to make a finding of fact on the issue without cross examination of the deponents of these three affidavits. That did not occur when it became apparent that it would occasion another day's costs in the proceeding and the first respondent declined to press the issue. I therefore make no finding of fact on the question whether the first respondent was given any advice by any officer of the second respondent to the effect that he was eligible to stand in the Tumbukka Ward and place no reliance on his allegation to this effect, either in determining the outcome of the petition or in deciding the question of costs.

5. The petitioner having succeeded in this proceeding, costs would normally follow the event. I am reluctant to deprive a successful petitioner of costs. There is a considerable element of public interest in the conduct of proper elections in the Aboriginal and Torres Strait Islander Commission and petitioners ought not to be discouraged from bringing to the attention of the Court in proper form irregularities which occur in those elections. It is unfortunate for the first respondent that he selected the wrong ward for which to nominate, following upon the boundary changes which occurred. On the other hand, he has contested the proceeding to the stage of trial, thereby increasing the costs involved. He has done so without contesting, and without having had any real prospect of contesting, the question of his disqualification. It would have been open to him to have resigned his position under s. 120 of the Act, or to have requested the Aboriginal and Torres Strait Islander Commission to make a declaration under s. 121(1) that the first respondent did not live in the Tumbukka Ward and had not lived in that ward during the immediately preceding period of six months. Either course would have caused a casual vacancy and brought into operation at an early stage the casual vacancies rules. It is therefore appropriate that the first respondent should pay the petitioner's costs.

6. I do not propose to order costs of the petition either for or against the second respondent. No order for costs in its favour was sought. No finding has been made against any of its officers. It has provided very real assistance to the Court in the resolution of the issues raised by the petition. I should not wish to discourage it from providing such assistance in the future.

7. The petitioner also filed a notice of motion on 3rd May 1994, returnable on 5th May 1994, on which day it was dismissed, with an order that the petitioner pay the costs of both respondents. It would be desirable that the costs of that notice of motion, and of the notice of motion filed on 2nd May 1994, to which I have already referred, be set off against the costs of the petition, as between the petitioner and the first respondent.

8. Clause 4 of schedule 4 to the Act requires a petitioner to deposit with the registrar of the Court the sum of $100.00 as security for costs at the time of filing an election petition. Clause 16 provides that if costs are awarded to any party against a petitioner, the deposit shall be applicable in payment of the sum ordered, but otherwise the deposit shall be repaid to the petitioner. There was no argument addressed to the fate of the petitioner's deposit in this case. In view of the orders which I propose to make in relation to costs, there might be some doubt as to how the deposit should be dealt with. Given that I propose to order the first respondent to pay the petitioner's costs of the petition, subject to setting off against those costs the first respondent's costs of the two notices of motion, it seems to me that I should order that the deposit be repaid to the petitioner.