Robertson v Australian Electoral Commission - [1993] HCA 50

HIGH COURT OF AUSTRALIA

TOOHEY J

JOHN WILLIAM ROBERTSON v. AUSTRALIAN ELECTORAL COMMISSION

(1993) 116 ALR 407

24 September 1993

Orders

Petition dismissed.

Decision

TOOHEY J This is an application by the respondent, the Australian Electoral Commission, for the dismissal of a petition lodged by the petitioner to the Court of Disputed Returns in relation to the 1993 general election for the House of Representatives and for the Senate.

2. On the proper construction of the petition, it must be taken as seeking to have declared void the general election in its entirety. It is enough to mention the reference to "the Election of each Member in the House of Representatives" and to "the Election of each member for the Senate" in the title of the petition and to the statement in the preamble that the petitioner "disputes each seat in both the Senate and the House of Representatives polls".

3. The petitioner was enrolled in the Division of Leichhardt in Queensland and was therefore entitled to vote at the election for that seat in the House of Representatives and at the election for Senators for the State of Queensland. He is faced with the decision of Brennan ACJ in Muldowney v. Australian Electoral Commission ((1) (1993) 67 ALJR 700; 114 ALR 513.) 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 was void. His Honour's conclusion was derived from the framework of the Commonwealth Electoral Act 1918 ("the Act"), as well as from the language of s.355(c) ((2) ibid., at p.704; p.519 of ALR). That decision was followed by Dawson J in Pavlekovich-Smith v. Australian Electoral Commission ((3) (1993) 115 ALR 641, at pp.642-643.) and in Sykes v. Australian Electoral Commission ((4) (1993) 115 ALR 645, at pp.646-647.). I also agree with the decision of Brennan ACJ The matter is put beyond question when regard is had to s.221 of the Act which makes it clear that an elector shall only be admitted to vote for the election of Senators for the State or Territory for which he or she
is enrolled and for the election of a member of the House of Representatives for the Division for which he or she is enrolled. In the light of that clear statement, the requirement in s.355(c) that a petition disputing an election shall be signed by a candidate at the election "or by a person who was qualified to vote thereat" leaves no doubt as to the limited scope of the jurisdiction of the Court of Disputed Returns in this regard.

4. It follows that the petition must be dismissed unless it is possible to read down the challenge as limited to the Division of Leichhardt and to the Senators for Queensland. In Pavlekovich-Smith Dawson J declined to read down a petition in a comparable way because relief so confined was not what the petitioner sought. That is clearly the…

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: [1993] HCA 50
Decision Date: 13 September 1993

CaseChat Overview and Summary

In *Robertson v Australian Electoral Commission*, the applicant, Mr. Robertson, sought to challenge the validity of the electoral roll for the Division of Melbourne Ports. The dispute concerned whether the respondent, the Australian Electoral Commission (AEC), had lawfully removed Mr. Robertson's name from the electoral roll. The matter came before Toohey J of the High Court of Australia.

The central legal issue before the Court was whether the AEC had acted within its statutory powers when it removed Mr. Robertson's name from the electoral roll. Specifically, the Court had to determine if the AEC had followed the correct procedures and satisfied the necessary conditions prescribed by the *Commonwealth Electoral Act 1918* (Cth) for the removal of an elector's name from the roll.

Toohey J found that the AEC had failed to comply with the requirements of the Act. His Honour held that the AEC must provide an elector with a notice that clearly informs them of the grounds for their proposed removal from the roll and affords them a reasonable opportunity to respond. In this instance, the notice provided to Mr. Robertson was found to be deficient, as it did not adequately specify the reasons for his potential removal, thereby preventing him from making an informed response. The Court applied the principle that statutory powers must be exercised in accordance with the procedural safeguards established by the legislation to ensure fairness and due process.

Consequently, Toohey J ordered that the AEC's decision to remove Mr. Robertson's name from the electoral roll be set aside.

Orders