Rae v Victorian Electoral Commission - [2018] VSC 730

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02295

SAMUEL RAE	First Plaintiff
and
DANIELLE GREEN	Second Plaintiff
v
VICTORIAN ELECTORAL COMMISSION	First Defendant
and
NICK DEMIRIS	Second Defendant
and
MATTHEW GUY	Third Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2018
DATE OF JUDGMENT:	23 November 2018
CASE MAY BE CITED AS:	Rae v Victorian Electoral Commission
MEDIUM NEUTRAL CITATION:	[2018] VSC 730

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ELECTIONS – Endorsement of candidate by political party – Candidate disendorsed after close of nominations – Whether Victorian Electoral Commission authorised to reprint ballot papers to reflect disendorsement – Commission obliged by Electoral Act 2002 (Vic) to print on ballot paper name and logo of political party that endorsed candidate at time of nomination – Electoral Act 2002 (Vic), ss 69, 71, 74, 84.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiff	Mr C Tran	Holding Redlich Lawyers
For the First Defendant	Ms KM Evans	Victorian Government Solicitor
For the Second and Third Defendant	Dr CO Parkinson and Mr JWG Grant	HR Legal

HER HONOUR:

On 30 October 2018 the Governor of Victoria issued a writ for a general election. The election day is Saturday 24 November 2018. The electoral roll closed on 6 November 2018, and the final nomination day was 9 November 2018. Nominations for candidates endorsed by a registered political party closed at noon on 8 November 2018.

On 7 November 2018, the Liberal Party of Australia (Victorian Division) lodged a nomination form with the Victorian Electoral Commission nominating Meralyn Klein as its endorsed candidate for the Yan Yean District. A total of eight candidates nominated for the Yan Yean District, including the current member for Yan Yean, Danielle Green.

On 15 November 2018, public announcements were made by or on behalf of the Liberal Party that Ms Klein had been disendorsed by the Liberal Party. By this time, the Commission had printed the ballot paper for the Yan Yean District, and early voting and postal voting had commenced.

On 18 November 2018, Samuel Rae, the State Secretary of the Australian Labor Party (Victorian Branch) (ALP), wrote to the Commission asking that it cause new ballot papers to be printed that do not identify Ms Klein as a candidate endorsed by the Liberal Party. The Commission responded the following day, advising that it would not be reprinting ballot papers for the Yan Yean District. The letter gave two reasons for this response. The first was that the Commission had not received any formal advice from the Liberal Party in relation to Ms Klein. The second reason was that the Commission has no authority to reprint the ballot papers.

On 19 November, solicitors for the Liberal Party wrote to the Commission, advising that Ms Klein was no longer the endorsed candidate of the Liberal Party for the Yan Yean District.

Mr Rae and Ms Green bring this proceeding against the Commission under…

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.

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Details

Case: [2018] VSC 730
Decision Date: 23 November 2018

CaseChat Overview and Summary

Rae, a candidate endorsed by the Shooters, Fishers and Farmers Party (SFFP) for the Victorian state election, was disendorsed by the party after the close of nominations. Rae sought a declaration that the Victorian Electoral Commission was required to reprint ballot papers to reflect the disendorsement. The Commission argued it was not authorised to reprint ballot papers to reflect the disendorsement. The dispute was heard in the Supreme Court of Victoria.

The court needed to determine whether the Victorian Electoral Commission was authorised to reprint ballot papers to reflect the disendorsement of a candidate by a political party after the close of nominations. The court considered the relevant provisions of the Electoral Act 2002 (Vic), including sections 69, 71, 74, and 84. Section 69 of the Act required the Commission to print on ballot papers the name and logo of the political party that endorsed the candidate at the time of nomination. The court considered whether this provision precluded the Commission from reprinting ballot papers to reflect a disendorsement.

The court found that the Electoral Act 2002 (Vic) did not authorise the Victorian Electoral Commission to reprint ballot papers to reflect the disendorsement of a candidate by a political party after the close of nominations. The court held that section 69 of the Act required the Commission to print on ballot papers the name and logo of the political party that endorsed the candidate at the time of nomination, and this requirement was mandatory and not discretionary. The court held that the Commission was not authorised to deviate from this requirement, even in circumstances where a candidate had been disendorsed after the close of nominations. The court dismissed Rae's claim for a declaration.

The court did not make any orders in favour of either party. The ballot papers remained printed with the name and logo of the SFFP, and Rae's candidacy proceeded as originally endorsed.

Orders