Parliamentary Elections (Cth)—Election for Senate and House of Representatives—Right to vote—Adult person with right to vote at elections for more numerous house of State Parliament not to be prevented by Commonwealth law from voting at Commonwealth Parliamentary elections—Claims for enrolment received after date of issue of writ for election not to be registered—Rejection by Commonwealth officer—Claimants placed on State electoral roll—Whether thereby entitled to vote in Commonwealth election—The Constitution (62 &63 Vict. c. 12), s. 41—Commonwealth Electoral Act 1918 (Cth), ss. 39, 39B, 45(a).

Decisions

February 24.
The following written judgments were delivered: -
GIBBS C.J., MASON AND WILSON JJ. Before the Court are four applications for a writ of mandamus directed to the Chief Australian Electoral Officer, the Australian Electoral Officer for New South Wales, and the Divisional Returning Officers for the four Divisions concerned, requiring them, in each case, to add to the Commonwealth roll of electors for the State of New South Wales the name of the prosecutor pursuant to s. 39B of the Commonwealth Electoral Act 1918 (Cth), as amended, and to permit the prosecutor to vote at the forthcoming elections of the House of Representatives and the Senate to be held on 5 March 1983. Certain alternative relief is sought, but it is similar in effect. (at p257)

2. Writs for the election of members of both the House of Representatives and the Senate were issued on 4 February 1983. They fixed the date for the polling as 5 March 1983. In consequence, claims for enrolment which had not been received by the Registrar before 6.00 p.m. on 4 February 1983 could not, if s. 45(a) of the Commonwealth Electoral Act validly applies, be registered until after the close of polling. The names of the prosecutors were not on the roll of Commonwealth electors as at 6.00 p.m. on 4 February 1983. Since that date, however, forms claiming enrolment as an elector for the Commonwealth and for the State of New South Wales have been received from each of the prosecutors by the respective Divisional Returning Officers. In two of the cases, the claims could have been made at an earlier date, but in two they could not, since one prosecutor (Mr. Kleppich) was not naturalized until 15 February 1983 and another (Miss Walters) attained the age of eighteen only on 15 February 1983. The names of all four prosecutors have been placed on the roll of electors for New South Wales, but, unless this Court so orders, their names will not be placed on the roll of Commonwealth electors until after 5 March 1983 (because of the requirements of s. 45(a)) and they will not be permitted to vote at the Commonwealth elections to be held on that date (because enrolment is a condition precedent to the right to vote: see…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pearson; Ex parte Sipka

Details

AGLC: R v Pearson; Ex parte Sipka [1983] HCA 6
Case: [1983] HCA 6
Decision Date: 24 February 1983

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition brought by Sipka against Pearson, a magistrate. The dispute concerned the validity of a search warrant issued by Pearson under s 10 of the *Drugs, Poisons and Controlled Substances Act 1971* (Vic). Sipka sought to challenge the legality of the search of his premises and the subsequent seizure of certain items, arguing that the warrant was invalidly issued.

The central legal issue before the High Court was whether the information laid before the magistrate to obtain the search warrant was sufficient to satisfy the requirements of s 10 of the *Drugs, Poisons and Controlled Substances Act 1971* (Vic). Specifically, the Court had to determine if the information provided reasonable grounds for the magistrate to believe that the premises were being used for the commission of an offence under the Act, as required by the legislation.

The Court reasoned that the information laid before the magistrate must contain sufficient particularity to enable the magistrate to form an independent judgment that there were reasonable grounds for the belief required by the statute. A mere statement of belief by the informant, without disclosing the grounds for that belief, is insufficient. The informant must provide the factual basis upon which the magistrate can assess whether reasonable grounds exist. In this instance, the information laid was found to be deficient in that regard, failing to disclose the specific reasons for the informant's belief.

Consequently, the High Court made absolute the order nisi for a writ of prohibition, quashing the search warrant and declaring the search and seizure unlawful.

Orders