Rae v Victorian Electoral Commission
[2018] VSC 730
•23 November 2018
| 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 Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. They contend that the Commission not only has authority to reprint the ballot papers, but must do so, and seek a range of orders to that effect.
Nick Demiris, the State Director of the Liberal Party, and the Honourable Matthew Guy, Leader of the Opposition and the Leader of the Liberal Party were also named as defendants. While the plaintiffs no longer sought any relief against Mr Demiris and Mr Guy, they accepted that they had an interest in the proceeding and were proper defendants.
The first issue for resolution is whether the Electoral Act 2002 (Vic) authorises the Commission to reprint the ballot papers for the Yan Yean District, to reflect the fact that Ms Klein is no longer endorsed by the Liberal Party. For the reasons that follow I have determined that it does not. Given that conclusion, there is no need to resolve the remaining issues, which concern the relief sought by the plaintiffs.
Section 74 of the Electoral Act deals with the preparation of ballot papers, in the following terms:
(1) As soon as practicable after noon on the final nomination day, the election manager must determine the order of names of candidates or groups of candidates on ballot-papers to be used in an election by drawing the names of the candidates or groups of candidates by lot in a manner determined by the Commission, either manually or by computer.
(2) If in the opinion of the Commission a similarity in the names of 2 or more candidates is likely to cause confusion, the names of those candidates may be arranged with a description as is determined by the Commission to distinguish the names.
(3) The Commission must cause ballot-papers to be printed to be used in an Assembly election—
(a) with the names of all the candidates at the election and of no other persons, in the form of Schedule 2; and
(b) in the order determined by the election manager.
…
(4) If a person has been endorsed as a candidate in an election by a registered political party, the name of that party must be printed adjacent to the name of the candidate on the ballot-papers.
(5) If a person has been endorsed as a candidate in an election by a registered political party that has a logo entered in the Register of Political Parties, the logo must be printed adjacent to the name of the candidate and beneath the square in relation to the group in accordance with Schedule 1A, 1B or 2, whichever is applicable.
By virtue of s 9(1), the Commission has power to do ‘all things necessary or convenient to be done for or in connection with the performance of its responsibilities and functions’. Those responsibilities and functions are described generally in s 8, and include the preparation of ballot papers in accordance with s 74.
The plaintiffs submit that the Commission may cause ballot papers to be printed under s 74(3) more than once between the close of nominations and the election day. They rely on s 40(a) of the Interpretation of Legislation Act 1984 (Vic), which provides:
Unless the contrary intention appears, where an Act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed –
(a) from time to time as occasion requires;
The Commission submits that the contrary intention appears from the Electoral Act, and that its duty under s 74(3) to cause ballot papers to be printed may be performed once only in relation to any given Assembly election. Whether the contrary intention appears requires consideration of the Electoral Act as a whole.[1] I have had regard to the provisions of the Electoral Act to which the Commission drew my attention, in particular those in Part 5 – Election Procedures.
[1]Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31, [101]-[102] (Mortimer J, Perry J agreeing).
While it is clear that Parliament intended the Commission to prepare ballot papers promptly, in time for the commencement of early voting and postal voting under Part 6, Division 3, there is nothing to suggest that the Commission’s duty may not be performed more than once, as the occasion requires. Indeed, the Commission accepted that it could reprint ballot papers to correct an error – for example a misspelling of a candidate’s name – or to replace ballot papers destroyed through some mishap. This position is consistent with the explicit purpose of the Electoral Act, to reform the law relating to elections in Victoria, and its implicit purpose of providing for improved and more flexible management of elections.[2] Reprinting ballot papers in these circumstances would not ‘annihilate’ or reverse the effects of an earlier performance of that duty.[3] It would simply add to its performance, as the occasion requires.
[2]Explanatory Memorandum, Electoral Bill 2002 (Vic), 1. See also the second reading speech for the Bill - Victoria, Parliamentary Debates, Legislative Assembly, 21 March 2002 (Mr Hulls, Attorney-General), 419–23.
[3]Cf Kabourakis v Medical Practitioners Board of Victoria (2006) 25 VAR 449, [81]–[86] and Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542, [23] (Hely J).
However, the Commission’s duty – and its corresponding power – to print ballot papers for an election from time to time as the occasion requires is to be performed subject to the Electoral Act. That Act imposes a number of obligations on the Commission as to the preparation of ballot papers that are ‘not merely directory or discretionary’.[4] These obligations are statutory prescriptions that neither the Commission nor the Court can ignore.
[4]Palmer United Party v Victorian Electoral Commission [2014] VSC 588, [8] (Palmer United Party).
These prescriptions include the requirement to, as soon as practicable after noon on the final nomination day, determine the order of names of candidates on a ballot paper by lot.[5] They also include the requirement to print ballot papers to be used in an election ‘with the names of all the candidates at the election and of no other persons’, where those candidates are the persons who have nominated in accordance with s 69 and who have not retired before the close of nominations.[6]
[5]Electoral Act, s 74(1).
[6]Electoral Act, ss 69, 71, 74(3)(a).
The Commission contends that ss 74(4) and (5) of the Electoral Act fall within this category of mandatory prescriptions. Those sub-sections provide that the name and any logo of a registered political party ‘must be printed’ next to the name of a candidate who ‘has been endorsed as a candidate’ by that political party. The Commission submits that these words can have only one meaning, and oblige it to print that information on the ballot paper for any candidate nominated by a political party in accordance with s 69(2) – even if that candidate is later disendorsed. The Liberal Party defendants made a similar submission.
The plaintiffs submit that the words ‘has been endorsed’ are capable of meaning something else. They submit that there is no necessary nexus between s 69 and s 74, and that ‘has been endorsed’ in ss 74(4) and (5) means ‘is endorsed at the time the ballot papers are printed.’ I cannot accept that submission.
I do accept, as the plaintiffs submit, that the words of a provision must be construed in their statutory context, and may take their meaning from that context.[7] However, the context of the Electoral Act does not support the meaning for which the plaintiffs contend.
[7]Independent Commission against Corruption v Cunneen (2015) 256 CLR 1, [57] (French CJ, Hayne, Kiefel and Nettle JJ).
First, the words ‘has been endorsed’ in ss 74(4) and (5) are to be contrasted with the words ‘is endorsed’ used in ss 69(2), 71(1) and 207(2). There appears to have been a deliberate choice by the drafter to use the past tense in ss 74(4) and (5).
Second, s 69 provides two distinct methods for nominating candidates – those who are endorsed by a political party and those who are not. Section 69(2) provides the method for nominating a candidate who ‘is endorsed by a registered political party’. The nomination form must include a statement specifying the form in which the candidate’s given name and the registered political party’s name are to be printed on the ballot-papers for the election.[8] Section 69(2) is a strong indication that the words ‘has been endorsed’ in ss 74(4) and (5) refer to endorsement by a nomination in accordance with s 69(2).
[8]Electoral Act, s 69(2)(d).
Third, s 71 limits the period during which a candidate may retire from an election. A candidate who is endorsed by a political party may only withdraw before noon on the day before the final nomination day. The deadline for candidates who are not endorsed is noon on the final nomination day. After that time, a candidate may not withdraw from the election. This has the effect that a candidate’s name must appear on the ballot paper, even if the candidate later decides not to contest the election, or if it becomes apparent that the candidate is ineligible to be elected.[9] In this regard, Parliament has permitted ‘some distortion of the democratic process’ in aid of the ‘orderly and effective conduct of elections’.[10] This indicates that other distortions may also be permitted, or indeed required, by the Electoral Act.
[9]Palmer United Party, [8], [10]–[11].
[10]Outline of submissions of the Commission dated 20 November 2018, [13].
Fourth, s 84 prohibits dissemination of misleading or deceptive matter in connection with an election. The plaintiffs place particular reliance on s 84(1), which prohibits printing, publication or distribution of ‘any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the vote of the elector’. They did not press a submission that the Commission’s use of the ballot papers in their present form would contravene s 84(1).[11] There is here no direct conflict between s 74 and s 84, and hence no need to determine which is the leading and which is the subordinate provision.
[11]Noting that the Commission represents the Crown and has, for all purposes, the status, privileges and immunities of the Crown: Electoral Act, s 6(2)(b), Interpretation of Legislation Act, s 46A(1).
Rather, the plaintiffs relied on s 84 as a contextual indication that a purpose of the Electoral Act is to ensure that an elector is not misled in casting a vote at an election, so that the vote recorded on the ballot paper registers the political judgment formed by the elector.[12] It may be accepted that this is one purpose of the Electoral Act. It is also clear that another purpose of the Electoral Act is to provide for the orderly and efficient conduct of elections. I conclude that, in ss 74(4) and (5), as in s 71, Parliament has given primacy to the orderly and efficient conduct of elections by specifying the time at which candidacy and endorsement by a political party on the ballot paper is determined.
[12]Plaintiffs’ outline of submissions dated 19 November 2018, [25]–[34], citing Evans v Crichton-Browne (1981) 147 CLR 169, 204–5; Robertson v Knuth (1996) 90 LGERA 291; Goss v Swan [1994] 1 Qd R 40, 41 and McLindon v Queensland Electoral Commission (2012) 291 ALR 169, [53].
I have also considered whether the ordinary meaning of ss 74(4) and (5) is such that words should be read in so that both provisions read ‘has been and remains endorsed’, so as not to defeat the legislative purpose. Words may be read in to a provision in only limited circumstances, for example where ‘simple, grammatical, drafting errors’ would defeat the object of the provision if not corrected. The Court’s task is, however, statutory construction and not judicial legislation.[13]
[13]Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [38]–[40] (French CJ, Crennan and Bell JJ), citing Lord Diplock’s speech in Wentworth Securities Ltd v Jones [1980] AC 74, 105–106.
In this case, the ordinary meaning of ss 74(4) and (5) has the result that voters in the Yan Yean District are being issued with ballot papers that do not accurately represent Ms Klein’s current party affiliation. The ballot papers indicate that she is the endorsed candidate of the Liberal Party, when that is no longer the case. This seems apt to confuse, even mislead, electors in registering their political judgment on the ballot paper, and might be regarded as an anomalous result. As I have explained, however, there are clear indications in the Electoral Act that Parliament made a deliberate choice to fix the endorsement information to be printed on ballot papers at the time of nomination. It is not fitting to read words in to ss 74(4) and (5) that would negate that choice.
In light of my conclusions as to the effect of ss 74(4) and (5) of the Electoral Act, the proceeding must be dismissed.
The second and third defendants did not seek an order for payment of their costs. Any application for a costs order by the Commission should be made in writing, by 30 November 2018. The plaintiffs may file a brief written submission on the question of costs by 5 December 2018. I will determine any application for costs made by the Commission on the papers.
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