Save Our Suburbs (SOS) NSW Inc v Electoral Commisisoner of NSW

[2002] NSWSC 785

Reported Decision: (2002) 55 NSWLR 642

New South Wales

Supreme Court

CITATION:	Save Our Suburbs (SOS) NSW Inc v. Electoral Commisisoner of NSW [2002] NSWSC 785
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 30048/2002
HEARING DATE(S):	19 & 20/08/02
JUDGMENT DATE:	30 August 2002
PARTIES :	Save Our Suburbs (SOS) NSW Inc - Plaintiff Electoral Commissioner of NSW - Defendant
JUDGMENT OF:	Burchett AJ at 1

COUNSEL :	J. Kirk - Plaintiff N. Perram - Defendant
SOLICITORS:	Public Interest Advocacy Centre - Plaintiff I V Knight Crown Solicitor - Defendant
CATCHWORDS:	ELECTIONS - registration of parties - conditions to be fulfilled - judicial review of decision of Electoral Commissioner - whether registration can be effected retrospectively - whether retrospective amendment of date of registration can be made.
LEGISLATION CITED:	Parliamentary Electorates and Elections Act 1912 Parliamentary Electorates and Elections Regulation 2001
CASES CITED:	Re Bolton; Ex parte Beane (1987) 162 CLR 514 Coco v. The Queen (1994) 179 CLR 427 Green v. Daniels (1977) 13 ALR 1 Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169 Howells v. Nagrad Nominees Pty Ltd (1982) 66 FLR 169 The Queen v. Anderson; Ex Parte Ipec-Air Pty Ltd (1965) 113 CLR 177 Hospital Benefit Fund of Western Australia Inc v. Minister for Health, Housing and Community Services (1992) 39 FCR 225 Muin v. Minister for Immigration [2002] HCA 30 Shanahan v. Scott (1957) 96 CLR 245 Utah Construction & Engineering Pty Ltd v. Pataky (1966) AC 629 Willocks v. Anderson (1971) 124 CLR 293 Peking Palace Ltd v. Trizec Construction Limited (1987) 20 BCLR (2d) 161 Duchow v. New York State Teamsters Conference (1982) 691 F 2d 74
DECISION:	Defendant to effect the registration of the plaintiff.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

BURCHETT AJ

FRIDAY 30 AUGUST 2002

30048/02 SAVE OUR SUBURBS (S0S) NSW INC v. ELECTORAL COMMISSIONER OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The Summons in this matter is concerned with the application to a political party of the amended provisions of Pt.4A of the Parliamentary Electorates and Elections Act 1912, which is headed “Registration of parties”. Those provisions commence with some definitions in s.66A(1), notably a definition of “eligible party” which includes a requirement that such a party have “at least 750 members”, and a definition of “member” of a party as meaning “a member of the party who is an elector”. Section 66B then provides:

Subject to this Part, an eligible party may be registered under this Part for the purposes of this Act and the Election Funding Act 1981.”

The Register of Parties is then provided for by s.66C. The Electoral Commissioner “is required to keep a register, to be called the Register of Parties, containing the names of the parties registered under this Part and other particulars or documents required by this Part.” It is to “be kept in such form and manner as the Electoral Commissioner thinks fit.”

2 An important provision is s.66D, headed “Application for registration”. By subss.(2) and (3) of that section:

(2) An application for the registration of a party must:
(a) set out the name of the party, and
…
(g) set out the names and addresses (as enrolled) of 750 electors who are members of the party and on whom the party relies for the purpose of qualifying as an eligible party, and
(g1) be accompanied by declarations of membership of the party (in the form prescribed by the regulations) completed and signed by the members on whom the party relies for the purpose of qualifying as an eligible party, and
…
(3) An application for the registration of a party must be accompanied by a fee of $2,000.

3 Section 66DA is headed “Notice of application for registration”. Its first subsection provides:

(1) On receipt of an application for the registration of a party, the Electoral Commissioner must cause a notice to be published in one or more newspapers circulating throughout New South Wales.


Subsections (2) to (4) then provide for the particulars that are to be in the notice, which must “request that any objections to the application be lodged with the Electoral Commissioner within 14 days after the date of publication of the notice.”

Subsections (5) and (6) have some importance:

(5) The Electoral Commissioner must consider all objections received during the period of 14 days, for the purpose of determining:
(a) whether the party referred to in the application is an eligible party, and
(b) whether the application was duly made, and
(c) whether the Electoral Commissioner should refuse to register the party.
(6) This section does not limit the matters that the Electoral Commissioner may take into consideration when determining the matters referred to in subsection (5).

4 Section 66E is headed “Registration”, and provides:

(1) If an application for the registration of an eligible party is duly made, the Electoral Commissioner must (subject to this Part) register the party by the insertion in the Register of Parties of the name of the party.
(2) The particulars or documents with respect to a registered party that were set out in or accompanied the application for the registration of the party are to be included in or form part of the Register of Parties.

5 The next provision of particular significance in the present case is s.66FA, headed “Entitlements resulting from party registration not available until first anniversary of registration”. This section provides:

(1) A party that becomes registered under this Part is not a registered party until the first anniversary of its registration for the following purposes:
(a) Division 6B of Part 5 (Party endorsement on ballot-papers),
(b) section 79 (Nomination of Assembly candidates) and section 81B (Nomination of Council candidates),
(c) section 151G (Registration of electoral matter).
(2) A party that becomes registered under this Part is not, until the first anniversary of its registration:
(a) a registered party for the purposes of the Election Funding Act 1981, or
(b) a party for the purposes of sections 60 and 61 of that Act.
(3) This section extends to a party whose registration was previously cancelled under this Part.

6 Section 66G deals with refusal to register a party. By subss.(1) and (2) it is provided:

(1) The Electoral Commissioner may refuse to register a party if it is not an eligible party or if its application for registration has not been duly made under this Part.
(2) Without limiting subsection (1), the Electoral Commissioner may refuse to register a party if the Electoral Commissioner believes on reasonable grounds that particulars set out in or documents accompanying the application are incomplete or not correct, but may, if the Electoral Commissioner thinks fit, register the party despite any such defect.

7 Subsection 3 then sets out a number of grounds on which the Electoral Commissioner “is to refuse to register a party”. By subs.(4) of the same section it is provided:

If the Electoral Commissioner refuses to register a party:
(a) the Electoral Commissioner must forthwith notify the applicant of the refusal and of the reasons for the refusal, and
(b) the applicant may, within 30 days after the date of the notification by the Electoral Commissioner, amend the application for registration and the Electoral Commissioner may deal with the amended application.

8 An important provision for present purposes is s.66H, headed “Amendment of Register”. Omitting subss.3A and 3B, this section provides:

(1) An application may be made to the Electoral Commissioner (in the form and manner approved by the Electoral Commissioner) for the amendment of the particulars in the Register of Parties with respect to a registered party.
(2) The application may be made:
(a) by the registered officer of the party, or
(b) if the application is to change the registered officer of the party by the secretary of the party.
(3) The provisions of this Part relating to an application for the registration of a party apply (subject to the regulations) to an application for the amendment of the Register of Parties. For that purpose, the application is to be regarded as an application for registration setting out particulars as proposed to be amended.
. . .
(4) If the application is approved, the Electoral Commissioner is to make the necessary changes in the Register of Parties.
(5) A reference in this section to the amendment of the particulars included in the Register of Parties includes a reference to the replacement of documents forming part of the Register.

9 Of some relevance to the present case is an express power, contained in s.66HA(3) and (4), enabling the Electoral Commissioner (in the words of subs.(3)) to “require:

(a) an applicant for registration, or
(b) the registered officer of a party,
to provide such information as is specified in the notice [a “notice in writing”] for the purpose of dealing with the application or of determining whether the party is an eligible party.

10 By s.66I, the Electoral Commissioner is empowered, if “satisfied on reasonable grounds” that (amongst other things) “a registered party is no longer an eligible party”, and “subject to and in accordance with the regulations”, to “cancel the registration of the party”.

11 Provision is made by s.66J for public access to the Register of Parties and to applications for registration or amendment, and by s.66JA for distribution of information to electors about registered parties.

12 Section 66K provides:

(1) A form that is prescribed or approved under this Part may require any information provided to be verified by statutory declaration.
(2) The Electoral Commissioner may also require any information in an application or return under this Part, or any information provided pursuant to a requirement under this Part, to be verified by statutory declaration.

Insofar as s.66K(2) refers to a requirement, it will be remembered that s.66HA empowers the Commissioner to make requirements addressed to an applicant for registration. Section 66L also relates to “any application made under this Part”, and imposes a penalty for a statement made therein known to be “false or misleading”, not limited to a statement verified by a statutory declaration.

13 The Part concludes with ss.66M and 66N which provide for certain certificates to be prima facie evidence, and make transitional provisions.

14 It is against the background of these provisions that the significance of the circumstances of the present case may be seen. The plaintiff wished to register its political arm, known as Save Our Suburbs, which may be abbreviated to SOS, as a registered party under Pt.4A. It was a party with a written constitution, and it had, on the evidence of its President Dr Recsei, at least 750 members. Indeed, he gave evidence indicating that it had a substantial excess over that number of members, and that, during the progress of the dispute in this case, it has continued to receive members. Although a number of individual memberships were questioned on grounds that may have been good or bad (for instance, the defendant stated that he excluded fifteen names on a ground he described as “member of another party”, which does not appear to be relevant unless the other party relied on the membership of it within s.66A(2)(a) and the member failed to nominate Save Our Suburbs as “the party entitled to rely on the member”), the Commissioner did not dispute the truth of Dr Recsei’s statement that there were at least 750 members. After making a number of enquiries about the Commissioner’s requirements, Dr Recsei, on 18 November 2001, lodged at the State Electoral Office an application for registration of the party, together with a list of over 900 members and their declarations, copies of notices of appointment of registered officer and party agent and a fee of $2000. On 27 November 2001, the party constitution and the originals of the notices of appointment were also lodged.

15 Despite the peremptory language of s.66DA, which requires the Commissioner, by the word “must”, to notify such an application “[o]n receipt”, the required notice was not published in one or more newspapers until much later. There does not seem to be any explanation of this, except that the Commissioner thought a procedure upon which he had determined could be pursued in priority to the statutory procedure. The matter is of some importance because, under s.66DA(7), registration could not occur until the completion of the statutory procedure, and the date of registration was of course supremely important having regard to the terms of s.66FA. What the Commissioner did was to send out a letter to 300 only of the members whose names and addresses he had been given, requesting them to confirm their membership by returning in a stamped addressed envelope a form he had devised. The letters and forms were sent out, one of his officers told Dr Recsei, on 23 November 2001. Although that date was on the cusp of the December-January holiday period, and the possible effect, among other things, of holidays, upon people’s willingness or ability to respond was pointed out in writing by Dr Recsei, the Commissioner insisted upon his view that a 75% positive response must be received before he would register the party. It was not until sometime in January that the Commissioner indicated he would proceed to have the statutory notice advertised.

16 The letter sent to the 300 members was on the letterhead of the State Electoral Office and was signed “J. Wasson Electoral Commissioner”. It was in the following terms:

An application has been received for the registration of Save Our Suburbs as a party under the provisions of the Parliamentary Electorates and Elections Act 1912.
The legislation requires this application be accompanied by evidence that the party has 750 members who are enrolled as electors in New South Wales.
Included in the documents lodged by Save Our Suburbs is a declaration of party membership signed by yourself.
In order that the application may be fully considered it is requested you complete the attached form indicating whether or not you are a member of Save Our Suburbs and return it in the reply-paid envelope enclosed.
It is important the form be returned as soon as possible as unless a sufficient number of persons confirm membership the party will not be registered. Your response is strictly confidential.
Should you have any enquiries please contact Michael Nevin, Brooke Dawson or Catherine Furlong.

The form enclosed was a few lines long. The first line read “I am a member of Save Our Suburbs .” The second line had two boxes, one labelled “YES” and the other labelled “NO”. The third line requested the recipient to tick the appropriate box. The fourth read “Name …”. The fifth read “Address …” and was followed by a further dotted line beneath which was provision for signature and date.

17 The selection of the 300 members to whom the letters and forms were sent was a little complicated. Although s.66D(2)(g) requires an application for registration to set out the names and addresses (as enrolled) of 750 electors on whom the party relies to qualify as an eligible party, Dr Recsei was advised by the Commissioner’s office to take the course he did, of submitting 900 odd names. Because an application is to be submitted, by s.66D(1), “in the form and manner approved by the Electoral Commissioner”, and because of the advice given to Dr Recsei, no point was taken that an application could not be submitted in this way. The statutory provision for reliance on 750 electors was implemented by the Commissioner’s office by taking the first 750 names in the list that it did not reject for various reasons including the reason I have already referred to in respect of 15 members, but also including non-enrolment and other defects. Having identified 750 names from the list, the Commissioner then selected at random 300 of those names to be the subjects of the test he imposed.

18 The importance the Commissioner attached to this procedure was indicated by a letter he sent on 10 December 2001 drawing attention to the deadline for registration if Save Our Suburbs was to be able to take part in the 2003 general election, a deadline which he stated as being 4 March 2002. (I was told at the hearing that this date was in fact incorrect, and that the correct date was rather later in that month.) After pointing out that there was no provision for an extension of time, he wrote that, as at the date of this letter, “147 persons have provided confirmation advice and 13 purported members have advised they are not members of the party.” He continued:

Assuming 225 confirmation advices are received I am then required to place a notice in a newspaper circulating in the State requesting that any objections to registration of the party be lodged within 14 days after publication. Registration cannot be effective until the expiry of these 14 days and any objections considered [ sic ].

Mr Wasson again referred to the question of the publication of notice of the application in a letter of 8 January 2002, which concluded:

Of course any subsequent registration will depend on meeting the confirmation advice requirement and consideration of any objections received.

19 Dr Recsei replied, protesting at the absence of statistical justification for the percentage of positive replies chosen by the Commissioner, in a letter of 10 January 2002 which included the following:

In our particular case I find it difficult to base an assessment of the membership numbers on a required fixed number of affirmative replies (225 out of 300) to a mailed inquiry. The absence of a reply can be dependent on factors other than whether the addressees are or are not members. These factors could include an unseasoned recipient being uncertain of the implications of answering an official letter, being lax in dealing with correspondence, being on holiday, having changed their address and many other reasons.

20 On 17 January 2002, Dr Recsei suggested there were other ways in which he could demonstrate the party had the required 750 members, “such as perhaps by utilising our reserve members not among the 750 names you have registered so far”. In a letter dated 21 January 2002, the Commissioner wrote to Dr Recsei:

Section 66D(2)(g) of the Act provides that an application for registration of a party must be accompanied by declarations of membership of the party by 750 enrolled members. This provision does not contemplate that any members other than those 750 can be relied upon to satisfy this criteria [ sic ].
In the circumstances I cannot agree to the proposal contained in your letter. The criteria which must be satisfied is [ sic ] the same which applies to all parties, including those already registered, and it is not proposed to depart therefrom.
At this stage some 184 persons have confirmed membership of you [ sic ] party.

Since the Commissioner’s test was superimposed on s.66D(2)(g), and s.66A(2) and s.66H contemplate amendment of the members relied on by a party, this response is not easy to understand.

21 At a meeting between Dr Recsei and Mr Wasson on 14 December 2001, Dr Recsei had said:

We are a genuine party and I can’t see that the procedure you are adopting is any test of whether the party was genuine and eligible for registration.

In reply, Mr Wasson said:

I don’t doubt that you are a genuine party. It’s not one that has been established to abuse the political system.

Again, on 5 March 2002, the Commissioner said to Dr Recsei:

I am sure your party is genuine but I am not prepared to vary the 225 confirmation requirement as this has been applied to every party.

He also said:

As soon as we receive 225 confirmations your party will be registered and can fully participate in subsequent by-elections and elections.

22 On 6 March 2002, Dr Recsei telephoned the Commissioner, and asked him directly:

Are you refusing to register the party?

The Commissioner responded:

I am not registering for the forthcoming election because of time. I am not refusing to register. To do that would require judgement on my part. I cannot do that. I am merely not registering until the 225 confirmation figure is reached.

Dr Recsei replied:

I cannot agree with your assumption that a failure to reply to your enquiry means that the person is not a genuine member of the party.

The Commissioner replied:

No, no. We are not assuming that.

23 After the present proceeding had been instituted on 11 June 2002, the Commissioner filed an affidavit sworn 3 July 2002, by when he had received 222 responses to his mail-out which he had accepted as affirmative (there had been 215 such responses as at 6 March 2002). The Commissioner concluded his affidavit with the following statement:

Upon receipt of three more membership confirmations the party will be registered. However, I do not regard it as part of my function to expedite such registration.

24 Consistently with his affidavit, the Commissioner, in cross-examination, answered the question: “So SOS had complied with that requirement of there being 750 members who are electors properly on the roll?” by saying:

They complied with the requirement that the application must be accompanied by declarations of 750 members and that those members must be on the roll, yes.

Asked: “Is it true to say that what stands in the way of SOS being registered as a party is that it has still not acquired 225 positive responses?” he replied:

At any time the party does achieve 225 positive responses it will be registered, yes.

The cross-examiner pressed the point:

So the sole hurdle standing in the way as at today’s date is the 225 requirement?

and the Commissioner replied:

That’s so.

He confirmed:

At the moment that [is] satisfied, they would be registered.

And he confirmed that that registration would be “a registration pursuant to the original application that was filed”, his “requirements in relation to that application having then upon that assumption … been satisfied”. The cross-examination included the following further questions and answers:


Q: As at today’s date, to the best of your knowledge, SOS has received 222 positive response, is that correct?
A: Yes, that’s so.

Q: And still they are not registered?
A: No.

Q: And that is because they haven’t met the requirement of 225 positive responses?
A: Yes, that the reason.

Q: Which is a requirement?
A: Which is my requirement, yes.

Q: You’re not going to waive that for SOS?
A: Not going to waive it for SOS or any party.

Q: Indeed a concern of yours - I think expressed in your affidavit - is you don’t want to move the goal posts for SOS compared to what you’ve done for other parties?
A: That’s exactly right.

Q: So it’s a concrete requirement applied to all?
A: Yes.

Q: It’s true isn’t it that nine applicants [for] party registration have been refused on this basis?
A: No, none – no party has been refused application [ scilicet registration]. They have not been registered. Their registration as far as I’m concerned, is pending, none of them refused.

In re-examination, Mr Wasson was asked “Just finally, have you refused SOS’s application?” and answered: “No, I haven’t refused its application.” Asked: “How do you regard its application as being?” he said:

As far as I know, my understanding is that what the situation is, its application is on foot. If I were to get back to work this afternoon and find that there had been 3 confirmation advices received today, this morning, I would register them tomorrow.

25 It is in this state of the evidence that the plaintiff contends the Commissioner has substituted for the statutory requirements, or rather superimposed upon them, a requirement of his own which cannot be valid. By s.66B, subject to Pt.4A, “an eligible party may be registered”. By s.66E, again subject to the Part, “the Electoral Commissioner must” register a party if it is “an eligible party” and the application is “duly made”. The words “subject to this Part” attract provisions such as s.66F (which forbids registration during an election), s.66DA (dealing with objections) and s.66G (which provides specific grounds for refusal to register). Then s.66DA(5) reinforces the plain effect of s.66E by making it clear (by the words “for the purpose of determining”) that what the Electoral Commissioner must do is determine whether the party is an eligible party, whether the application was duly made; and whether one of the discretionary or compulsory grounds of refusal set out in s.66G applies. In the present case, the Electoral Commissioner gave emphatic evidence that the only matter not determined in favour of the applicant for registration is compliance with his requirement of a 75% response (that is evaluated by him as positive) in respect of his mail-out to members. So much is this a precise test in itself, and not a mere means of determining the statutory questions under the sections to which I have referred, that he was prepared to make it clear three more positive responses out of 300 requests would determine the matter. So technical an application of the test is not consistent with using it as a means of obtaining information but only with using it as a separate requirement to be satisfied. And the evidence also makes it clear that, although the number of responses outstanding was larger, in principle the position was precisely the same prior to the deadline for registration for the purposes of the application to the next general election of s.66FA.

26 The Commissioner, when challenged by Dr Recsei on 6 March 2002, sought to justify his position by reference to two matters: his power to seek statutory declarations to verify information; and a note at the foot of the form prescribed by the regulations, of declaration of membership of a political party (form 20 prescribed for the purposes of s.66D(2)(g1) by regulation 34 of the Parliamentary Electorates and Elections Regulation 2001). As to the latter point, regulation 34 simply prescribes the form of declaration of membership to be completed and signed by a member on whom the party relies for the purposes of qualifying as an eligible party. The form itself is unexceptionable; at the foot of it, under the heading “Notes”, there are two notes, the first of which refers to the manner of completion of the form, the particulars in which “are to be written by hand at the same time the form is signed”. The second note reads:

(2) The Electoral Commissioner may, in order to verify the requirements for registration of a party, request a person who signs a declaration of membership to confirm that the person is a member of the party and that the person completed and signed the form.

27 As to the Commissioner’s point about statutory declarations, his power in this regard is contained in s.66K, the terms of which would certainly justify requiring a statutory declaration to be furnished by an applicant for registration. However, the section neither suggests a test of the kind involved in this case, nor refers to verification by such a means as the Commissioner here adopted. The simple fact is that the prescribed form here in question did not “require any information provided to be verified by statutory declaration” pursuant to subs.(1) of the section, and the Commissioner made no requirement under subs.(2). The reference in subs.(2) to information provided “pursuant to a requirement under this Part” seems, in any case, to refer to information provided pursuant to a provision such as s.66HA(1), (3) or (4).

28 As to the note, there is a question, to which I shall return, whether a regulation could validly impose a further test so as to deny registration to an applicant which had brought itself within the terms of the statute, particularly as the note (and the form mailed out in this case) does not refer to membership at the date of the application, but at a later date. However, assuming that could be done, this note can hardly have the suggested effect. It is plainly no more than an indication to the person who signs a declaration of membership that the Commissioner may make a request, for verification purposes, to that person. It says nothing about the manner in which the request might be made. Having regard to evidence that something of the kind is done by the Commonwealth electoral officer, but in a quite different way, the note certainly would not necessarily be understood as suggesting anything like the procedure involved in the present case. Very importantly, there is no reference to a requirement imposed on the applicant for registration that a particular percentage of replies be received recorded only on forms sent out to persons whose identity would not be disclosed to the applicant, so that the applicant could not ensure that replies were received or that the true facts were ascertained in respect of all cases where a satisfactory reply was not received, or was said not to have been received.

29 The policy of the statute, evidenced by s.66HA(3) and (4) and by s.66K, appears to be to empower the Commissioner to impose requirements upon the applicant for registration, not upon other persons. Subections (3) and (4) of s.66HA expressly refer to “an applicant for registration”, while s.66K, as I have pointed out, refers to the form which an applicant submits, to applications and returns, and to “information provided pursuant to a requirement under this Part”, which seems naturally to refer back to the provision authorising the Commissioner to impose such a requirement, s.66HA(3). Furthermore, the legislature thought it necessary to provide expressly, in s.66HA(4) that if an applicant fails to comply with the requirement under that section, “the Electoral Commissioner may decline to deal with the application”. No such authority to decline to deal with an application is given where someone other than an applicant fails to comply with a requirement. One would think that if an express authority were needed in the former case, much more would it be needed in the latter because of the injustice involved in an application being declined as a result of a failure not attributable to the applicant.

30 A very important further check on the validity of an application, and the right of a party to be registered pursuant to the substantive provisions of the Part, is provided by the policy expressed by s.66DA. An application must be advertised so that objections can be lodged, and all objections must be considered. In the present case, no obstacle to the application arose out of s.66DA.

31

When the court is asked by the Commissioner to construe the powers given to him by the legislation broadly, so as to include powers not clearly stated among the quite precisely defined provisions of the Part, the plaintiff relies in answer upon the principle affirmed by the High Court, citing re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, in Coco v. The Queen (1994) 179 CLR 427 at 437:

Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.

32 The plaintiff says that the right to participate fully in the political process, and in elections in particular, is a fundamental implication of a democratic polity, so that a full opportunity to participate in elections is “a fundamental freedom” of the citizens of this State. I agree with this submission, which accords with an understanding of the nature of a democracy that has endured for well over 2000 years. In his “Democracy and participation in Athens” (1988) at 23, Professor R.K. Sinclair quoted the observation of Aristotle that “a citizen is simply defined by nothing else so much as the right to participate in judicial functions and in office”, pointing out that the term “office” for Aristotle “included all those functions which entailed the exercise of power” including “membership of the Assembly”. In the modern era, the ability to participate through parties is essential to any effective participation in the political process. Insofar as the Act inhibits the right of full participation in this way, it is legislation to which the principle of Coco v. The Queen applies. Heeding that principle, I cannot find that the Parliament has made it “unmistakably clear” that it was its intention to abrogate or suspend the rights, the plaintiff asserts, and the rights of citizens of New South Wales who might wish to vote for candidates proposed by Save Our Suburbs or in favour of policies espoused by that party, in the manner and to the extent required by the Commissioner’s submissions.

33 In Green v. Daniels (1977) 13 ALR 1, a decision of a single judge of the High Court, Stephen J, the plaintiff sought judicial review of a decision denying her unemployment benefits during the school holidays period. Under the legislation, she was entitled to the benefits if she satisfied the Director-General of certain matters including that she was “unemployed”. He declined to allow the benefit during the period of the holidays, so she alleged, because of the inflexible application to her of a policy that school leavers should not be treated as qualifying for benefits until the end of the school holidays. The justification urged by the Director-General for such a policy was that if she were going to resume full-time studies at the end of the holidays, she would not be “unemployed” within the meaning of the legislation. The case contained difficulties for the plaintiff which are not to be found in the present case: first, the pre-requisites were all expressed in the statute as depending on the satisfaction of the Director-General; and secondly, the Director-General did not give evidence of the kind the Commissioner has given before me indicating total satisfaction, save for the receipt of an additional three sufficient forms pursuant to the requirement he has imposed. But it seems to me that the reasoning of Stephen J. is relevant. He posed (at 8) the issue before him in the following terms:

The question is, then, whether this general rule is no more than a permissible instruction by the Director-General to those to whom he has delegated his powers … as to how they are to determine whether they are satisfied of the matters there referred to; or whether on the contrary it reveals an attempted substitution of inconsistent departmental criteria for those which the Parliament has enacted as appropriate to qualify an application for unemployment benefit.

And at 9, Stephen J said:

No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refers. He must, no doubt, for the benefit of his delegate and in the interest of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction. But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant’s compliance with the criteria will be vitiated.
This is what has happened in the present case. The criteria in s.107(c)(i) and (iii), those of being ‘unemployed’ and of having ‘taken reasonable steps to obtain such work’, have had superimposed upon them a requirement which prevents them from being satisfied by any school leaver during the school holidays, a period of about three months, and which, in effect, renders them inoperative during that period.

34 In my opinion, this reasoning is applicable to the present case. The Commissioner has superimposed upon the statutory criteria a quite arbitrary requirement of compliance with a test devised by himself, which does not appear in the legislation. A similar point arose in Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169, where I said at 175:

It is simply not true that an applicant must meet the policy criteria for a grant of residence status under s.6A(1)(b); what he must meet is the criterion laid down by the statute. Having met that criterion, an applicant’s case should be considered in the light of the policy, but as an individual case. If the policy requires additional criteria to be met, which Parliament has not enacted, the policy cannot validly be enforced.
(The emphases are original.)

35 The plaintiff relied also on a number of other ways of putting the case, in particular, on the principle of Wednesbury unreasonableness and on the principle which forbids the inflexible application of a policy. As to the latter point, reference may be made to the joint judgment of Fox and Franki JJ in Howells v. Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195; 43 ALR 283 at 307. However I do not find it necessary to pursue these issues. Counsel for the Commissioner fairly stated in his submissions:

It may be conceded that if the Plaintiff is an ‘eligible party’ and that the application was ‘duly made’ then the Commissioner is compelled to register the Plaintiff.

36 I have already indicated that I understood the Commissioner’s own evidence to establish both the issues to which counsel referred. He is withholding registration only because 222 replies, instead of 225, have been received to his mail-out. The criterion which that view involves being invalid, no barrier remains to registration.

37 Where no further discretion remains, it has been held that a mandamus may issue: The Queen v. Anderson; Ex Parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 188. It is apparent from the remarks of Kitto J at 187-188 that he concluded in that case, as I conclude in this, that the decision maker’s evidence of the reasons for his refusal, those reasons being invalid, revealed that he was in fact satisfied upon all the issues which the statute raised.

38 But the issue which is then outstanding is whether the provisions of s.66FA can now be satisfied, the date being 12 months prior to the next general election having already passed. Section 66FA provides that, for such a purpose, a “party that becomes registered under this Part is not a registered party until the first anniversary of its registration”. The expression “first anniversary of its registration” (as to which, see Peking Palace Ltd v. Trizec Construction Limited (1987) 20 BCLR (2d) 161 at 164; Duchow v. New York State Teamsters Conference (1982) 691 F 2d 74 at 79) looks back to s.66E, imposing the obligation on the Commissioner to “register the party”. The plaintiff suggests that such a registration can be back-dated. The defendant, on the other hand, contends that this is impossible. For the defendant, it is pointed out that various provisions of the Part are time related. In s.66G(4), the Commissioner is required to act “forthwith” if he refuses an application. Under s.66HA, there is a time aspect to the requirement to furnish an annual return. Section 66FA itself is clearly concerned with time. In s.66E, the requirement to register is not expressly extended by any concept of doing so retrospectively, and the question is whether there is any reason to imply a power to effect such a registration.

39 On the other hand, just because of the important effect of s.66FA, emphasised by the peremptory requirement in s.66G(4), it may be said that the Commissioner had a duty to effect registration as soon as a party entitled to be registered had “duly” made its application and the statutory requirements were satisfied. In a number of cases, a statutory power to take some action has been held to be impliedly subject to a condition that it be done within a reasonable time: Hospital Benefit Fund of Western Australia Inc v. Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 229, 232, and the authorities there cited. As I have already pointed out, in the present case the Commissioner delayed for a significant period in effecting the advertising he was required to undertake, as well as in the pursuit of the test he undertook by the mail-out. It is not likely that the legislature intended s.66FA to operate in a circumstance of this kind.

40 In the absence of any provision enlarging the act of registration referred to in s.66E to embrace an act performed “nunc pro tunc”, I do not think that I can make an order that the Commissioner perform such an act. The court makes orders of that kind, but the question is whether the act it orders the Commissioner to carry out can be of that kind. However, this may not be the end of the matter. Pursuant to s.66H, there is a power to amend the Register. When the plaintiff is registered, although the Act does not specify as a particular of registration the recording of any date of registration, it is implicit, particularly in s.66FA, that the Commissioner must do so. The power of amendment in s.66H expressly includes “amendment of the particulars in the Register of Parties with respect to a registered party”. By s.66E(2), those particulars “are to be included in or form part of the Register of Parties”. Section 66A(2) is consistent with the view that, at least in some respects, an amendment may have a retrospective effect. As is well known, in connection with court proceedings, amendments have frequently been held to have such an effect.

41 The question then is whether an amendment of the particulars of registration could be made to show as the true date of registration of the party the date when it was entitled to be registered, and should have been registered, but for official error. The matter may be tested by an example which cannot be dismissed as fanciful if the history of politically inspired cabinet leaks in various parts of Australia is taken into account. Suppose the decision is made to register a party a day or two before the deadline for it to participate as such in the next general election; and the public servant whose task it is under s.66E(1) to make the actual registration “by the insertion in the Register of Parties of the name of the party” deliberately delays for that day or two because of a strong personal attachment to a particular political view – could it be that Parliament intended the Register to be incapable of amendment so as to remedy the situation? And if the answer be that obviously an amendment could be made to show the date when all the requirements for registration were satisfied, though no appropriate entry was then made, why should not the same apply where the act of registration was withheld unlawfully because of an erroneous view of the nature of the statutory duty to be performed?

42 In my view, the power of amendment should be construed as sufficiently wide to enable the retrospective insertion of particulars including the date when registration should have been effected. If I had not reached that conclusion, there would have been stronger ground to construe s.66E in the manner contended for by the plaintiff, as involving an implicit power to back-date.

43 For the Commissioner, it was submitted that it would set at nought the provisions of s.66FA if the power of amendment were construed as extending to a correction of the kind I have indicated. However, it seems to me the reverse is true. Section 66FA has a positive, as well as a negative, side. It would set at nought the obvious intention of Parliament that a party which took the appropriate steps to register in time should have the benefit of the various provisions referred to in s.66FA if it could, in fact, irrevocably lose those benefits because of a deliberate or gravely mistaken official act. As McHugh J said in Muin v. Minister for Immigration [2002] HCA 30 at [104]:

If we can, we should give the words of a statute – which after all are only the means of conveying ideas and information to the public – a meaning that covers contemporary processes and accords with the object of the enactment.

44 Earlier in these reasons, I indicated that I would return to the question whether the footnote on which the Commissioner relied to justify his test, if it should be construed as doing so, would be valid. In my opinion, it would be invalid for the reasons stated in the joint judgment of Dixon CJ Williams Webb and Fullagar JJ in Shanahan v. Scott (1957) 96 CLR 245 at 250 which were adopted by the Privy Council in Utah Construction & Engineering Pty Ltd v. Pataky (1966) AC629 at 640 and were reaffirmed by the High Court in Willocks v. Anderson (1971) 124 CLR 293 at 298 – 299. In the last case (at 299), the High Court rejected “attempts to widen the purposes of the Act and to add a means of carrying them into effect which the Act itself does not contemplate”.

45 For these reasons, the court orders the defendant to effect the registration of the plaintiff.

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Last Modified: 09/09/2002