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 case here because, in his written submissions, the
petitioner states:

"In this present Matter the particular seat of Leichhardt is of no consequence; the whole election was affected because there was no National media coverage of the 'Money Solution' because there was no prosecution in this Matter and so we have a unique situation."

5. Even if it were possible to treat the petition as restricted to the Division of Leichhardt and to the election of Senators for Queensland, there are other reasons why the petition must fail.

6. The second ground relied upon by the respondent in its summons is that, in so far as the petition challenges the election of Senators for Queensland, the petition does not comply with s.355(e) of the Act. That paragraph requires that a petition be filed "within 40 days after the return of the writ". And s.358(1) provides that no proceedings shall be had on a petition unless s.355 has been complied with. The writ relating to Senators for Queensland was returned to the Governor of Queensland on 19 April 1993. The petition was filed in the Brisbane office of the Registry on 7 June 1993, some 49 days after the return of the writ.

7. The Act has no provision for an extension of the time allowed by s.355(e) for the filing of a petition. It is apparent from the decision of the Court of Disputed Returns in Nile v. Wood ((5)
(1988) 167 CLR 133, esp. at p.137.) and from the authorities referred to in that decision that no extension may be granted ((6) See also Pavlekovich-Smith (1993) 115 ALR, at p.643; Sykes (1993) 115 ALR, at p.648.).

8. The third ground of the respondent's application alleges a failure by the petitioner to comply with the requirements of pars (a) and (aa) of s.355 of the Act. The former provision requires that the petition set out the facts relied on to invalidate the election and the latter that those facts be set out with sufficient particularity to identify the specific matters said to justify relief.

9. As Dawson J observed in Sykes ((7) (1993) 115 ALR, at p.648.), "the precise distinction between par.(a) and par.(aa) of s.355 is a matter of some obscurity". And as his Honour further observed ((8)
ibid.):

"it appears that under par.(a) the essential facts may be stated with a degree of generality and it is par.(aa) which requires sufficient particularity to identify the specific matter or matters relied on".

While s.358(2) contains a power to dispense with compliance with par.(aa), there is no such power in respect of par.(a). In consequence, s.358 itself operates as a bar to proceedings on a petition unless the requirements of par.(a) have been met. That in turn presupposes that "the facts" to which par.(a) refers are sufficient "to invalidate the election" ((9) See Sykes (1993) 115 ALR, at pp.648-649 and the cases there referred to.).

10. In Hudson v. Lee ((10) (1993) 115 ALR 343.) Gaudron J held that s.362 contains an exhaustive statement of the grounds on which the Court of Disputed Returns may avoid an election. That confines the Court to cases of bribery or corruption, undue influence and illegal practice, the latter term being defined by s.352(1) to mean "a contravention of this Act or the regulations". While her Honour's reasons are persuasive, it is unnecessary for me to express a concluded view on the matter because, whether or not s.362 is exhaustive of the grounds on which the Court of Disputed Returns may declare an election void, the petitioner has not adduced any facts which would justify such a course in the present case.

11. The petition alleges a variety of matters which seem to turn on an article published in The Cairns Post on 20 February 1993, which the petitioner regards as defamatory of a candidate for the Division of Leichhardt at the election in question, James Llewellyn Cavill. Mr Cavill is said to be or have been a member of the Ozone Party, an unregistered political party, and the petitioner's complaint is that the article in question put the Ozone Party in a false light as to its policies and by implication ridiculed Mr Cavill. The petition then continues by alleging that in some way, not easy to discern, the respondent favoured the Government of the day by not taking steps that would ensure adequate media coverage for the Ozone Party. So far as the latter allegation is concerned, it could not conceivably lead to an avoidance of the election, whether s.362 be regarded as exhaustive or not.

12. Section 350(1) of the Act makes it an offence to defame the personal character or conduct of a candidate for an election. If the article was defamatory of Mr Cavill, it may be argued that there was a breach of s.350(1), hence an illegal practice. However, counsel for the respondent submitted that, at most, the article defamed a political party, not the personal character or conduct of a candidate. While this argument has much force, it is unnecessary for me to express a final view because the complaint contained in the petition does not relate to the article itself but to an alleged failure on the part of the Electoral Commissioner to act on the matter.

13. There is a requirement in s.382 of the Act that the Electoral Commissioner "shall, in every case where the Crown Law authorities so advise, institute legal proceedings against any person committing any offence against this Act". Again, it may be argued that, though s.382 is to be found in Pt XXIII - Miscellaneous and not in Pt XXI - Electoral Offences, a failure to observe the requirements of the section is a breach of the Act, hence an illegal practice. But the evidence in the present case is that the Crown Law authorities did not advise the Electoral Commissioner to institute legal proceedings in respect of the article. The petitioner complains of an alleged failure on the part of the Electoral Commissioner to seek such advice but, as the Act imposes no positive duty on the Commissioner to do so, such an omission could not constitute an illegal practice or otherwise enliven the jurisdiction of the Court.

14. The respondent also seeks, by way of further or other relief, an order that proceedings on the petition be stayed pursuant to O.63 r.2 of the High Court Rules on the grounds that there is no reasonable or probable cause of action or suit; further, that the proceeding is vexatious and oppressive and an abuse of the process of the Court. Order 63 r.2 is available in proceedings before the Court of Disputed Returns ((11) Order 68 r.2. And see the decision of Fullagar J in Crittenden v. Anderson, 23 August 1950, noted in 51 Australian Law Journal 171 but not on this point.). But in view of my earlier conclusions, it is unnecessary to consider the operation of O.63 r.2 in the present case.

15. The petition must fail because it challenges the election of members of the House of Representatives and Senators at large. It must fail also because it does not comply with s.355(a) of the Act. In addition, in so far as the petition challenges the election of Senators for Queensland, it does not meet the requirements of s.355(e) of the Act.

16. The petition will be dismissed.