Rowe & Anor v Electoral Commissioner & Anor - [2010] HCATrans 182

[2010] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M101 of 2010

B e t w e e n -
SHANNEN ALYCE ROWE (ON HER OWN BEHALF AND AS A REPRESENTATIVE PARTY)
First Plaintiff
DOUGLAS STEWART THOMPSON (ON HIS OWN BEHALF AND AS A REPRESENTATIVE PARTY)
Second Plaintiff
and
ELECTORAL COMMISSIONER
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 JULY 2010, AT 9.17 AM

MR R. MERKEL, QC: If your Honour pleases, I appear with my learned friend, MS K.L. WALKER, for the plaintiffs. (instructed by Mallesons Stephen Jaques)

MR T.M. HOWE, QC: May it please, I appear for the first defendant. (instructed by Australian Government Solicitor)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR G.R. KENNETT, and MR D.F. O’LEARY for the second defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Merkel.

MR MERKEL: Your Honour, can I just indicate that, subject to what your Honour might say, I understand the parties are in agreement about a procedure that would enable this matter to be brought on before a Full Court if your Honour is disposed to refer it to a Full Court.

HIS HONOUR: As at present advised I propose to refer the matter pursuant to rule 25.03.3(b) for further hearing by a Full Court on Wednesday 4 August at 10.15 in Canberra unless any party desires to be heard against my taking that course.

MR MERKEL: I do not understand anyone does, your Honour. Could I take your Honour to the proposed orders of my learned friend, the Solicitor, at paragraph ‑ ‑ ‑

HIS HONOUR: Yes I have read those. May I raise some questions about the timetable? That timetable would see your submissions go on on Monday, I think, would it not?

MR MERKEL: Yes, your Honour.

HIS HONOUR: I do not think that is likely to be satisfactory. I think we need your submissions on Friday, the defendant’s submissions on Monday, intervener’s submissions on Monday and reply on Tuesday. Now, I know that timetable is very tight, but I think if the matter is to be prepared properly, there is nothing for it but to begin the timetable on the Friday. Now, that would mean that 4.00 pm Friday would be an absolute drop dead deadline for your side’s submissions. Can that be done?

MR MERKEL: Yes, your Honour. The words “drop dead” have a certain incentive about it to make sure that it is done, your Honour.

HIS HONOUR: That is the intention, Mr Merkel.

MR MERKEL: The only thing I think we would need, your Honour, is that the reason why the Monday deadline had a practical necessity to it was the agreed facts need to be finalised. We would ask if your Honour could direct, in paragraph 13.4 of…

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: [2010] HCATrans 182
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the validity of certain electoral rolls prepared by the Electoral Commissioner for the State of New South Wales. The appellants, Mr. Rowe and another, challenged the inclusion of names on these rolls, arguing that the individuals listed were not entitled to be enrolled as electors. The Electoral Commissioner and the Attorney-General for New South Wales were the respondents.

The central legal issue before the High Court was whether the Electoral Commissioner had acted lawfully in preparing the electoral rolls, specifically concerning the interpretation and application of the *Electoral Act 1912* (NSW) and the *Constitution Act 1902* (NSW) regarding the qualifications and enrolment of electors. The appellants contended that the Commissioner had failed to properly ascertain the eligibility of persons whose names appeared on the rolls, thereby contravening statutory and constitutional requirements for electoral rolls.

Hayne J, in his judgment, considered the nature of the Electoral Commissioner's duty in preparing electoral rolls. His Honour affirmed that the Commissioner has a positive obligation to ensure that only qualified persons are enrolled and that unqualified persons are removed. The Court examined the evidentiary standards required for enrolment and the process by which the Commissioner should satisfy himself of an applicant's eligibility. The principles of administrative law, particularly concerning the proper exercise of statutory power and the duty to act in accordance with the law, were central to the determination. The Court ultimately found that the Commissioner's actions in preparing the rolls in question did not meet the legal standard required by the relevant legislation.

The High Court allowed the appeal, quashed the electoral rolls as prepared, and remitted the matter to the Electoral Commissioner with a direction to prepare new rolls in accordance with the law.

Orders