Schorel-Hlavka v Governor General

[2001] FCA 1577

FEDERAL COURT OF AUSTRALIA

Schorel-Hlavka v Governor General [2001] FCA 1577

PRACTICE AND PROCEDURE – application for inquiry into upcoming federal parliamentary election – validity of election – Whether Federal Court has jurisdiction – Effect of sections 353 and 383 of the Commonwealth Electoral Act 1918 (Cth)

Acts Interpretation Act 1901 (Cth) s 36(1)

Commonwealth Electoral Act 1918 (Cth) ss 353, 354, 383

Commonwealth of Australia Constitution Act 1900 (Cth) ss 12 and 32

Federal Court Rules 1979

Berrill v Hughes (1984) 59 ALJR 64

GERRIT HENDRIK SCHOREL-HLAVKA v THE GOVERNOR GENERAL, THE GOVERNOR OF VICTORIA, THE GOVERNOR OF NEW SOUTH WALES, THE GOVERNOR OF SOUTH AUSTRALIA, THE GOVERNOR OF WESTERN AUSTRALIA, THE GOVERNOR OF QUEENSLAND AND THE GOVERNOR OF TASMANIA, THE COMMONWEALTH OF AUSTRALIA and THE AUSTRALIAN ELECTORAL COMMISSION

V1145 OF 2001

MARSHALL J
MELBOURNE
7 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1145 OF 2001

BETWEEN:

GERRIT HENDRIK SCHOREL-HLAVKA
APPLICANT

AND:

THE GOVERNOR GENERAL, THE GOVERNOR OF VICTORIA, THE GOVERNOR OF NEW SOUTH WALES, THE GOVERNOR OF SOUTH AUSTRALIA, THE GOVERNOR OF WESTERN AUSTRALIA, THE GOVERNOR OF QUEENSLAND AND THE GOVERNOR OF TASMANIA
FIRST RESPONDENTS

THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

THE AUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

7 NOVEMBER 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the third respondent, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1145 OF 2001

BETWEEN:

GERRIT HENDRIK SCHOREL-HLAVKA
APPLICANT

AND:

THE GOVERNOR GENERAL, THE GOVERNOR OF VICTORIA, THE GOVERNOR OF NEW SOUTH WALES, THE GOVERNOR OF SOUTH AUSTRALIA, THE GOVERNOR OF WESTERN AUSTRALIA, THE GOVERNOR OF QUEENSLAND AND THE GOVERNOR OF TASMANIA
FIRST RESPONDENTS

THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

THE AUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENT

JUDGE:	MARSHALL
DATE:	7 NOVEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 2 November 2001, the applicant filed in the Victorian District Registry of the Court a document purporting to be an application for an inquiry relating to the upcoming federal parliamentary election (“the election”).  An affidavit in support of that application was also filed. An amended application and further affidavits were filed today.

2. The applicant seeks to delay the election scheduled for 10 November 2001. The applicant claims that the election has been invalidly called because, inter alia, the date for the receipt of nominations was less than 10 days after the issue of the relevant writs. The writs were issued on 8 October 2001 and the date for the receipt of nominations was set at 18 October 2001.

3. It is sufficient to say that, having regard to the provisions of s 36(1) of the Acts Interpretation Act 1901 (Cth), it is unlikely that the construction advanced by the applicant would succeed. However, I have not heard full argument on that point.

4. There is a more fundamental problem with the application, which led Mr Hanks, counsel for the Australian Electoral Commission (“the AEC”), to make an objection as to competency. The application purports to challenge the validity of the electoral process. Section 353(1) of Commonwealth Electoral Act 1918 (Cth) (“the Act”) provides:

   “The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.”

   Section 354(1) of the Act provides:

   “The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial to the Federal Court of Australia…”

5. Consequently, under ss 353 and 354 of the Act, this Court only has the jurisdiction to try a petition disputing the validity of a parliamentary election when the petition or part thereof has been referred for trial by the High Court of Australia (see also Berrill v Hughes (1984) 59 ALJR 64 at 66 per Mason J).

6. Under Order 51B rule 4 of the Federal Court Rules, a sealed copy of an order of the High Court referring a petition or part of a petition to this Court must be filed in a District Registry of the Court. No such order has been filed in this matter, and it appears from the supporting affidavits filed in the matter that the applicant has not filed any documents in the High Court.

7. The applicant submitted that this Court had jurisdiction to hear the matter pursuant to s 383 of the Act. Section 383(1) of the Act provides as follows:

   “Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to elections, the Federal Court of Australia (the Federal Court) may, on the application of:

   (a)in a case where the conduct relates to an election – a candidate in the election; or

   (b)in any case – the Electoral Commission;

   grant an injunction restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any act or thing.”

8. The applicant sought an order against the AEC, to restrain it from continuing to hold the election in circumstances where the Governor General and the various State Governors had set in train a timetable for the election which the applicant considered to be in breach of the Act.

9. I agree with Mr Hanks’ submission that s 383 of the Act does not provide a means for avoidance of the effect of ss 353 and 354 of the Act. Section 383 of the Act does not authorise challenges to the validity of steps taken by the Governor General or State Governors, or attempts to restrain the AEC conducting an election. Even if the writs were unlawfully issued, the AEC does not act in contravention of the Act by acting in accordance with those writs. The words “a contravention … of this Act” do not extend to alleged deficiencies in writs issued under ss 12 and 32 of the Constitution, which specify dates for the purposes of ss 155, 156 and 157 of the Act.

10. The effect of ss 353(1) and 354(1) of the Act when read together is that the validity of an election can only be impugned in the High Court sitting as the Court of Disputed Returns. A purported application in this Court that seeks to invoke s 383(1) of the Act cannot be used as a backdoor method by which the validity of an election can be impugned. Accordingly, the application will be dismissed.

11. I am not satisfied that there is any reason put forward by the applicant as to why the ordinary order as to costs should not be made. I order that the applicant pay the costs of the third respondent, such costs to be taxed in default of agreement.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             7 November 2001

Mr Schorel-Hlavka appeared for himself.
Counsel for the 3rd Respondent:	Mr P J Hanks QC
Solicitor for the 3rd Respondent:	Australian Government Solicitor
Date of Hearing:	7 November 2001
Date of Judgment:	7 November 2001