Sharples v O'Shea
[1999] QSC 190
•18 August 1999
IN THE SUPREME COURT
OF QUEENSLAND
No 6318 of 1998
Brisbane
[Sharples v O’Shea & Anor]
BETWEEN:
TERRY PATRICK SHARPLES
Plaintiff
AND:
DESMOND J O’SHEA
First Defendant
AND:
PAULINE LEE HANSON as representative of
herself and all members of PAULINE HANSON’S
ONE NATION (as registered under the Electoral Act
1992 (Qld))Second Defendant
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 18 August 1999
CATCHWORDS ADMINISTRATIVE LAW - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS - APPEALS FROM PARTICULAR AUTHORITIES - application for review of decision of Electoral Commission to register political party - whether applicant had standing to bring application - where application brought out of time - whether discretion to extend time should be exercised.
ADMINISTRATIVE LAW - ADMINISTRATIVE DECISION - procured by misrepresentation of fact or fraud - invalidity - consequences.
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - QUEENSLAND - OTHER MATTERS - invalid administrative decision - whether obtained by fraud or misrepresentation - effect.
PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PLEADING - STATEMENT OF CLAIM - where application for review brought under the Electoral Act 1992 - whether questions posed at trial sufficiently raised on the pleadings.
ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS, LIABILITIES AND DISSOLUTION - INTERNAL MANAGEMENT - GENERALLY - political organisations - membership - whether people were members of the political party.
ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS, LIABILITIES AND DISSOLUTION - RULES AND MEETINGS - political organisations - whether political party properly registered by Electoral Commission - change to constitution - whether applicants for membership accepted as members.
Associations Incorporation Act 1981 (Qld) s.48
Associations Incorporation Regulation 1982 (Qld)
Commonwealth Electoral Act 1918 s.141
Corporations Law s.360
Electoral Act 1992 (Qld) ss.3, 7, 69-75, 84, 180, sch.Allan v Development Allowance Authority (1998) 152 ALR 439 referred to
Alphapharm Pty Ltd v Smithkline Pty Ltd (1994) 121 ALR 373 considered
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 referred to
Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to
Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 referred to
Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 followed
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 referred to
A’Hearn v Comcare (1993) 18 AAR 22 referred to
Baldwin v Everingham [1993] 1 Qd R 10 followed
Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 considered
Bateman’s Bay Land Council v Aboriginal Fund (1998) 72 ALJR 1270 considered
Bollag v Attorney-General (Cth) (1997) 149 ALR 355 referred to
Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 followed
Burton v Murphy [1983] 2 Qd R 321 referred to
Cameron v Hogan (1934) 51 CLR 358 at 384 considered
Chalk v Commissioner for Superannuation (1994) 50 FCR 150 referred to
Chapman v Tickner (1995) 55 FCR 316 referred to
Clayton v Heffron (1960) 105 CLR 214 referred to
Conservative and Unionist Central Office v Burrell [1980] 3 All ER 42 referred to
Dare v Pulham (1982) 148 CLR 658 referred to
Edgar and Walker v Meade (1916) 23 CLR 29 followed
Federal Commissioner of Taxation v Bayly (1952) 86 CLR 506 considered
Fenlon v Radke [1996] 2 Qd R 157 referred to
G v H (1994) 181 CLR 387 followed
Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 considered
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 referred to
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 followed
Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 considered
Lamb v Moss (1983) 49 ALR 533 referred to
Lazurus Estates Ltd v Beasley [1956] 1 QB 702 referred to
Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 considered
Lewis v Heffer [1978] 1 WLR 1061 referred to
Lucic v Nolan (1982) 45 ALR 411 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Onus v Alcoa of Australia Ltd (1982) 149 CLR 27 followed
Packer v Meagher (1984) 3 NSWLR 486 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841; 51 ALR 490 applied
R v Ashford, Kent, Justices; Ex parte Richley (No 2) [1956] 1 QB 167 referred to
R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 considered
Rajski v Bainton (1990) 22 NSWLR 125 referred to
Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 137 ALR 47 considered
Re Williams and Australian Electoral Commission (1995) 38 ALD 366 considered
Renowden v McMullin (1970) 123 CLR 584 referred to
Robertson v Knuth [1997] 1 Qd R 95 referred to
Robinson v Western Australian Museum (1977) 138 CLR 283 referred to
Scarcella v Morgan [1962] VR 201 referred to
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 referred to
Thorp v Holdsworth (1876) 3 Ch D 637 referred to
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 referred to
Turner v King [1992] 1 Qd R 307 referred to
Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 68 ALJR 304 referred to
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 referred to
Weissensteiner v The Queen (1993) 178 CLR 217 referred to
Woods v Bate (1987) 7 NSWLR 560 applied
Woods v Beattie, ex parte Woods [1995] 1 Qd R 343 referred to
Counsel: S J English for the plaintiff
P J Flanagan for the first defendant
P J Lyons QC and P J Roney for the second defendant
Solicitors: Crown Solicitor for the first defendant
Watkins Stokes Templeton for the second defendant
Hearing dates: 25-26, 29-30 March 1999, 7 April 1999 and 10 May 1999.
IN THE SUPREME COURT
OF QUEENSLAND
No 6318 of 1998
Brisbane
[Sharples v O’Shea & Anor]
BETWEEN:
TERRY PATRICK SHARPLES
Plaintiff
AND:
DESMOND J O’SHEA
First Defendant
AND:
PAULINE LEE HANSON as representative of
herself and all members of PAULINE HANSON’S
ONE NATION (as registered under the Electoral Act
1992 (Qld))Second Defendant
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 18 August 1999
Terry Sharples is an accountant who lives on the Gold Coast in south east Queensland. Prior to his involvement with the political party known as Pauline Hanson’s One Nation, he had twice contested a council ward in local government elections but had never been a member of a political party. On 20 May 1998, he met with Paul Trewartha whom he believed to be the national vice-president and national secretary of Pauline Hanson’s One Nation. In fact Mr Trewartha was national vice-president and national secretary of Pauline Hanson Support Movement Inc, an incorporated association. On 22 May 1998 they agreed that Mr Sharples would stand as a candidate for Pauline Hanson’s One Nation in the electorate of Burleigh and Mr Sharples filled out a membership application form for Pauline Hanson’s One Nation[1] and a candidate nomination application form which he handed to Mr Trewartha who faxed them to the Sydney office of Pauline Hanson’s One Nation. At that time Mr Sharples intended to join the political party for whom he was standing as a candidate. Subsequently he came to the view that he had unwittingly applied to join another organisation which was a support movement but not a political party. Mr Sharples paid Mr Trewartha $290.00 cash, being $40.00 for membership application fees and $250.00 for candidate party nomination fees. He also gave Mr Trewartha a $250.00 cheque for electoral nomination fees. He added two conditions to his application to the party:- firstly that in his electorate of Burleigh, no preferences would be given by Pauline Hanson’s One Nation without Mr Sharples’ written agreement; and secondly, that the Electoral Commission refund to candidates would be passed on by the party to Mr Sharples at the rate of 75% of his personal campaign expenditure. Mr Trewartha also gave Mr Sharples a document which Mr Trewartha signed which was headed “Draft Only” and which read:
“SUBJECT: QUEENSLAND STATE ELECTION REIMBURSEMENTS REFUND OF EXPENDITURES FOR STATE CANDIDATES ACHIEVING MORE THAN 4% OF THE PRIMARY VOTE.
WHERE APPROPRIATE DOCUMENTATION IS SUPPLIED TO THE QUEENSLAND ELECTORAL COMMISSION VIA THE STATE ELECTORAL PARTY AGENT, MICK CHAPMAN ... BOX 246 GYMPIE 4570 ... PH 0754866243 ...
APPROVED EXPENSES WILL BE REIMBURSED AT 75% OF CANDIDATES [sic] PERSONAL EXPENSES RELATING TO STATE CAMPAIGN.ALSO, INDIVIDUAL CANDIDATES SHOULD APPOINT THEIR OWN AGENTS OT [sic] HANDLE ELECTORAL EXPENSES (WITH COPY TO MICK CHAPMAN.)”[1]A copy of the application form is Exhibit 35. The failure to produce the original was never satisfactorily explained by the second defendant.
On 22 May 1998, Mr Sharples signed an Electoral Commission form entitled “Endorsed Candidate’s Consent and Declaration” stating that he was the candidate endorsed by Pauline Hanson’s One Nation and nominated by the registered officer of that party for the electoral district of Burleigh and that he consented to being nominated.
Mr Sharples received a membership card in the post for Pauline Hanson’s One Nation dated 4 June 1998. It showed his membership number as 6227 and his branch as “Gold Coast”. The card recited “Members of Pauline Hanson’s One Nation are dedicated to assisting candidates endorsed by Pauline Hanson to win seats in the next Federal Election”. On the reverse were set out “Pauline’s Political Goals”:
“1.To stop all immigration except that related to investment until all Australia’s unemployment is solved.
2.To treat all Australians equally and abolish divisive and discriminatory policies, such as those related to aboriginal and multicultural affairs.
3.To restrict foreign ownership of Australia, repeal the Native Titles Act [sic], abolish ATSIC and reverse WIK.
4.To restore tariff protection, revitalise Australian manufacturing and initiate financial support for small business and the rural sector.
5.To take positive action on such matters as taxation reform, education, health, unemployment, crime and the discrimination created by political correctness.”
The “support movement” goals were set out as follows:
“1.To volunteer members [sic] time to assist endorsed candidates at the next election.
2.To assist with letterbox drops, staffing election booths, distributing and placing election material.
3.To conduct fundraising activities and functions to raise funds needed to fight the next election.
4.To recruit new support group members and promote the benefits of voting for Pauline Hanson’s One Nation.
5.To remain a non-political organisation which exists only to support Pauline Hanson’s One Nation.”
Mr Sharples stood as a candidate for the seat of Burleigh in the Queensland State Election held on 13 June 1998 and received more than 4% of the valid first preference votes polled in the electorate. He was described on the ballot paper[2] as Sharples, Terry, Pauline Hanson’s One Nation. However, he had a disagreement with David Oldfield from Pauline Hanson’s One Nation about the allocation of preferences. On the evening before election day Mr Trewartha rang Mr Sharples to tell him that “they were withdrawing all help” and that he was “on [his] own”.
[2]Exhibit 31.
On 16 June 1998 Mr Sharples caused solicitors acting on his behalf to write to Mr King of Pauline Hanson’s One Nation Queensland Electoral Campaign Committee saying that Mr Sharples had spent in excess of $11,000.00 in the campaign, that he had not been paid any of his expenses to date and that he was entitled to a full reimbursement of the amount which would be paid by the Electoral Commission to the party for each primary vote cast for Mr Sharples. On 14 July 1998, Mr Sharples sent letters of demand for his election expenses to Mr Trewartha described in the address as “National Vice-President, National Secretary, Pauline Hanson’s One Nation” and to Mr James described as “State Director, Pauline Hanson’s One Nation”. No reimbursement has been made to Mr Sharples. As a result he started investigating Pauline Hanson’s One Nation to determine what entity to sue to recover his electoral expenses.
Nature of the proceedings
This matter was commenced by writ on 10 July 1998 and was set down for trial by jury. An injunction which had been granted on 29 July 1998 restraining the first defendant the electoral commissioner from paying electoral funding to Pauline Hanson’s One Nation until the trial of the matter was discharged on 14 August 1998 and on 2 September 1998, the electoral commission paid $225,071.07 and on 25 September 1998, $273,566.24 in public funding to Pauline Hanson’s One Nation after a decision in the Court of Appeal on 9 September 1998. That matter was not further pursued on the trial of the action.
Immediately before the date on which the trial was to commence, the plaintiff sought and was granted leave on 22 March 1999 to amend his case so that it became an application to review under s.180 of the Electoral Act 1992 (Qld). That section provides as follows:
“Review of certain decisions
180.(1) The decisions set out in the following table are reviewable under this section if an application for review is made under this section by the person set out in the table.
Reviewable decision
Person who may apply for review
1. A decision under section 58(4) regarding the inclusion of a person’s address in the publicly available part of an electoral roll
The person
2. A decision under section 65 not to amend an electoral roll to give effect to a notice by a person
The person who gave the notice
3. A decision to take action, or not to take action, under section 67(5) to amend the electoral rolls
The person who objected under section 67 to the enrolment of another person or the other person
4. A decision under section 72 to register, or under section 73 to refuse to register, a political party
Any person affected by the decision
5. A decision under the Act that a person is a special postal voter
The person
(2) An application for review of a reviewable decision must -
(a)be in writing; and
(b)be made to -
(i)in the case of a reviewable decision mentioned in item 4 in the table - the Supreme Court; and
(ii)in any other case - a Magistrates Court; and
(c)be made within 1 month after the decision comes to the notice of the applicant or such further period as the court allows; and
(d)set out the grounds on which review is sought.
(3) The court must review the decision and make an order -
(a)confirming the decision; or
(b)varying the decision; or
(c)setting aside the decision and making a decision in substitution.
(4) If an application for review of a decision has been made to a Magistrates Court, a party to the application or the Attorney-General may, before or at any stage during the hearing of the application, apply to a District Court or the Supreme Court for removal of the matter to the court.
(5) The court may, by order, grant the application.
(6) If an application for review of a decision is required to be made to a Magistrates Court, a person who may make the application may apply to a District Court or the Supreme Court for leave to make the application to the court instead of a Magistrates Court.
(7) The court may, by order, grant the leave.
(8) The Supreme Court or a District Court is to be constituted by a single judge for the purposes of this section.
(9) The Magistrates Court is to be constituted by a stipendiary magistrate for the purposes of this section.”
This is the review of a reviewable decision under subsection 180(1) item 4 i.e. a decision pursuant to s.72 to register a political party.[3] Such an application for review can only be made to the Supreme Court constituted by a single judge. Accordingly the plaintiff withdrew his request for a jury. The plaintiff has set out his grounds on which review is sought in his statement of claim and it is only those grounds as particularised which will be considered,[4] i.e. that the procedure required by law to be observed in relation to the making of the decision was not observed; that the making of the decision was an improper exercise of the power conferred by the Electoral Act 1992 under which it was purported to be made; that the decision involved an error of law; that the decision was induced or affected by fraud or misrepresentation;[5] and that the decision was otherwise contrary to law.
[3]Second Reading Speech, Hansard, 29 April 1992, p.4716.
[4]Odgers on Pleading and Practice 19th Ed p. 74. The causes of action on which a plaintiff relies are to be ascertained exclusively by reference to the statement of claim without regard to the endorsement on the writ: Renowden v McMullin (1970) 123 CLR 584.
[5]Fraud must be pleaded distinctly and with particularity and clearly proved: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573; Briginshaw v Briginshaw (1938) 60 CLR 336 at 363.
The application for registration falls to be determined by the Electoral Commission of Queensland (“the commission”) under s.72 of the Electoral Act 1992 which provides:
“Registration
72.(1) If the commission, after considering all statements and replies to the statements under section 71, is satisfied that the application complies with the requirements of section 70, the commission must, subject to subsection (3) and section 73, register the political party.
(2) Registration is effected by entering or otherwise including in the register of political parties -
(a)the information set out in the application (other than under section 70(4)(e)); and
(b)any document accompanying the application as required by section 70(4)(f) and (g).
(3) The commission must not take any action in relation to the application during the election period in relation to an election.
(4) The commission must not register a political party other than in accordance with this section.
(5) On registration of the political party, the person whose name was set out in the application under section 70(4)(c) becomes the party’s registered officer for the purposes of this Act.
(6) As soon as possible after it registers the political party, the commission must -
(a)give written notice to the registered officer that it has done so; and
(b)if any person made a statement to the commission under section 71 in relation to the application - give written notice to the person stating that it has registered the party and setting out why the reasons in the person’s statement were rejected; and
(c)notify the party’s registration by gazette notice.”
The commission in this Part of the Act is constituted solely by the electoral commissioner (“the commissioner”), Mr O’Shea, the first defendant in this matter.[6]
[6]Electoral Act 1992 s.7(3).
The commissioner must not register a political party otherwise than in accordance with the procedures set out in s.72. If the commissioner, after following those procedures, is satisfied that the applicant complies with s.70, the commissioner, subject to subs.72(3) and s.73, must register the political party. The commissioner, in addition, has a discretion to refuse the registration of a political party given by s.73 of the Electoral Act 1992 which provides:
“Refusal of registration
73.(1) In this section -“application name” means a name for a political party, or the abbreviation of the name for a political party, set out in the party’s application for registration.
“party body name” means the name, or an abbreviation or acronym of the name, of a prominent public body.
“party name” means the name, or an abbreviation or acronym of the name, of a parliamentary party or registered political party.(2) The commission may refuse to register a political party if the commission believes on reasonable grounds that information set out in, or documents required to accompany, the application are incorrect.
(3) The commission must refuse to register a political party if the party’s application name -
(a)has more than 6 words; or
(b)is obscene or offensive; or
(c)is a party name; or
(d)so nearly resembles a party name that it is likely to be confused with or mistaken for the party name; or
(e)includes the word ‘independent’; or
(f)would otherwise be likely to cause confusion if registered.
(4) The commission may refuse to register a political party if the party’s application name -
(a)is a public body name; or
(b)so nearly resembles a public body name that it is likely to be confused with or mistaken for the public body name.
(5) If the commission decides to refuse an application, it must give the person who was to be the registered officer of the political party written notice of -
(a)the refusal; and
(b)the reasons for the refusal; and
(c)the rights of the person to have the refusal decision reviewed.”
Section 70 sets out what is required to be contained in an application for registration as follows:
“Applications for registration
70.(1) An application for registration of a political party is to be made in accordance with this section.(2) The application must only be made for the registration of a registrable political party.
(3) The application must be made by the secretary of the party.
(4) The application must be made to the commission in a form approved by the commission for the purposes of this section, and must -
(a)state a name for the political party; and
(b)if the political party wishes to use an abbreviation of its name on ballot papers for elections - set out the abbreviation; and
(c)set out the name and address of the person who is to be the political party’s registered officer for the purposes of this Act; and
(d)if the application is for a Queensland parliamentary party - set out the name of 1 member of the party who is a member of the Legislative Assembly; and
(e)if the application is for a party that is not a Queensland parliamentary party - set out the names and addresses of 500 members of the party who are electors; and
(f)be accompanied by a copy of the party’s constitution; and
(g)set out any other prescribed information and be accompanied by a copy of any other prescribed document.”
A “registrable political party”[7] is an organisation whose object or activity, or one of whose objects or activities, is the promotion of the election to the Legislative Assembly of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part, that either is a parliamentary party or has at least 500 members who are electors and is established on the basis of a written constitution (however described) that sets out the aims of the party.
[7]Electoral Act 1992 s.3.
Ms Hanson who was the person named as the party’s registered officer in the application for registration by Pauline Hanson’s One Nation pursuant to subs.70(4)(c) is the second defendant in this matter in her capacity as representative of herself and all members of Pauline Hanson’s One Nation (as registered under the Electoral Act 1992 (Qld)).
After an application for registration is made, the commissioner must give members of the public the opportunity to object to the registration of the party. The procedure for doing so is set out in s.71 of the Electoral Act 1992:
“Publication of notice of application
71.(1) As soon as practicable after an application is made to the commission, the commission must publish a notice in relation to the application in -
(a)the gazette; and
(b)a newspaper circulating generally in the State.
(2) The notice must -
(a)set out the information included in the application under section 70(4)(a) to (c); and
(b)invite any persons who believe that the application -
(i)is not in accordance with section 70; or
(ii)should be refused under section 73;
to submit to the commission, within 1 month after the day of publication of the gazette notice, a statement under subsection (3).
(3) The statement must -
(a)set out in detail the grounds for the belief; and
(b)set out the address of the person; and
(c)be signed by the person.
(4) The commission must make the statement available at its office for public inspection, without fee.
(5) The commission must give the person who is to be the party’s registered officer -
(a)a copy of the statement; and
(b)a notice inviting the person to give the commission a reply to the statement within such reasonable period as is specified in the notice.
(6) If the person gives the commission a reply within the period, the commission must, as soon as practicable, make the reply available at its office for public inspection, without fee.”
The system of registration of political parties in Queensland was recommended by the Electoral and Administrative Review Commission (“EARC”) in its report “The Review of the Elections Act 1983-1991 and Related Matters”[8] (“the EARC Report”). The EARC Report and the implementation of its recommendations recognise the important role of political parties in the public life of the State and underscore the political neutrality[9] of the commissioner in overseeing the registration and funding of political parties. The EARC Report observes:
“Registration of political parties and candidates is a process whereby the central role of parties and candidates is given a more official electoral status. This formal recognition enables the electoral system to confer certain privileges and benefits on parties, candidates and electors. At the same time it provides a means of achieving greater accountability in the electoral system.”[10]
“The registration process is designed to confer a level of electoral status and official recognition on a political party.”[11]
Once a political party is registered the details of the party are entered into a public register of registered political parties,[12] the party may nominate its candidates centrally[13] and thereby is entitled to have the name of the party or the abbreviation thereof after the candidate’s name on ballot papers,[14] the party is entitled to public funding rather than the individual candidates,[15] and the party is required to lodge an annual return of receipts and expenditure.[16]
[8]Report No. 7 of 1991.
[9]Second Reading Speech, Hansard, 29 April 1992 p.4715.
[10]Clause 4.1.
[11]Clause 4.28.
[12]Electoral Act 1992 s.69.
[13]Electoral Act 1992 s.84(1)(a).
[14]Electoral Act 1992 s.97(2)(g).
[15]Electoral Act 1992 Part 7 and the Schedule.
[16]Electoral Act 1992 Schedule cl.314AB.
Section 180 of the Electoral Act 1992 makes the decision to register a political party judicially reviewable. However the statutory recognition of political parties also means that other matters such as disputes concerning the rules of registered political parties are justiciable.[17] As Dowsett J observed in Baldwin v Everingham,[18] referring to registration of political parties under the Commonwealth Electoral Act:
“the Commonwealth Parliament, in conferring legislative recognition upon political parties has taken them beyond the ambit of mere voluntary associations”.
The same applies to political parties registered under the Queensland Electoral Act 1992. Their rules are more than just a matter between the members of the political party as those rules are required to be registered.[19] There is now a significant public interest in the enforcement of the rules of registered political parties.[20]
[17]cf Cameron v Hogan (1934) 51 CLR 358 at 384.
[18][1993] 1 Qd R 10 at 20.
[19]Edgar and Walker v Meade (1916) 23 CLR 29 at 43-44; Baldwin v Everingham (supra) at 19-20.
[20]Baldwin v Everingham (supra) at 24.
Registration of Pauline Hanson’s One Nation
The question of substance to be determined in this matter is whether or not Pauline Hanson’s One Nation was properly registered as a political party under the Electoral Act 1992. In the grounds of review as particularised the plaintiff essentially relies on three matters, and perhaps a fourth, to challenge the party’s compliance with the requirements of the Electoral Act 1992. The first three are that it did not have 500 members who were enrolled as electors in the State of Queensland;[21] that it did not have as one of its aims and objectives the election of candidates to the Queensland Legislative Assembly;[22] and thirdly, that the person who signed as secretary of the party was not in fact the secretary of the party.[23] The fourth consideration, which was not vigorously pursued at trial because of a lack of evidence, was that the political party’s registered officer, Ms Hanson, did not give her correct residential address as her address as required.[24] There is, however, no statutory requirement to give a residential address. The plaintiff says that the second defendant, its servants and agents, knew that its application for registration did not comply with the requirements of the Electoral Act 1992 and obtained its registration by fraud or misrepresentation.
[21]Electoral Act 1992 ss. 3, 70(4)(e).
[22]Electoral Act 1992 ss. 3, 70(2).
[23]Electoral Act 1992 subs.70(3).
[24]Subs.70(4)(c) requires the person who is to be the political party’s registered officer to give his or her name and address.
In order to determine the questions of standing, extension of time and the merits of the action, it is necessary to look at the history of Pauline Hanson’s One Nation and the organisations which were formed and how the plaintiff came to form the view that it had failed to satisfy any or all of the matters referred to above. This has necessitated a careful examination and evaluation of all of the evidence before the Court and any inferences that might properly be drawn. There are facts which are difficult to reconcile with one another and the rules of the party,[25] whether because of a lack of transparency or lack of care in drawing up the rules or in statements made, but the Court’s role is to examine the evidence and come to a determination about the matters raised before it.[26]
[25]cf Baldwin v Everingham (supra) at 23.
[26]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Standing of the plaintiff
For the reasons given by Gibbs CJ in Onus v Alcoa of Australia Ltd,[27] I considered it appropriate to proceed to hear this case on its merits before determining the question of standing.
[27](1982) 149 CLR 27 at 38; see also Robinson v Western Australian Museum (1977) 138 CLR 283 at 302-303.
While it is important to guard against vexatious and illegitimate litigation, it is equally important not to unnecessarily deny those with a real interest in a question which also has great public interest from litigating such an issue on what might be seen as technical grounds. In Bateman’s Bay Land Council v Aboriginal Fund,[28] the High Court referred with approval to the warning given by Brennan J in Onus v Alcoa[29] that to deny standing may be to “deny to an important category of modern public statutory duties an effective procedure for curial enforcement.” The courts have attempted to reconcile these competing considerations by developing a flexible rule that a plaintiff has standing to prevent the violation of a public right if he or she has an interest in the subject matter beyond that of other members of the public.[30] As the High Court observed in Bateman’s Bay Land Council v Aboriginal Fund:[31]
“Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation.”
[28](1998) 72 ALJR 1270 at 1280.
[29](supra) at 73.
[30]Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 at 530-531, 537, 547-548; Onus v Alcoa of Australia Ltd (supra) at 36, 43, 49-50, 73-74; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 at 81 per Gummow J; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority (1998) 152 ALR 439 at 443, 446-447, 457.
[31](supra) at 1281 per Gaudron, Gummow and Kirby JJ.
The plaintiff’s standing in this case is determined by whether he is a person affected[32] by the decision to register the political party.[33] This criterion of standing should not be given a narrow construction.[34] The legislation, in terms, gives a right to a person affected to seek judicial review of a decision in addition to the public objection procedure in s.71 of the Electoral Act 1992.[35] This gives an important statutory role to the Supreme Court to exercise curial supervision of the decisions of the commissioner to register political parties.
[32]Alphapharm Pty Ltd v Smithkline Pty Ltd (1994) 121 ALR 373 at 395.
[33]Electoral Act 1992 subs.180(1) item 4; cf Re McHattan (1977) 18 ALR 154 at 157.
[34]Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 527.
[35]cf Alphapharm Pty Ltd v Smithkline Pty Ltd (supra) at 403 per Gummow J.
The real interest of the plaintiff is seen in the fact that he believed he had joined the political party, Pauline Hanson’s One Nation, and he had stood as a candidate for it in the State election held on 13 June 1998. The name of the party, Pauline Hanson’s One Nation appeared next to his name only because it was a registered party[36] and he was endorsed by that party.[37] His expectation of a refund of his electoral expenses was based on his expectation that the political party was registered and would receive electoral funding[38] from which his expenses or a part of them would be reimbursed. Thus his interest comes within the scope and purpose of the statute in issue because he was affected by the rights given to the political party by registration.
[36]Electoral Act 1992 s.97(2)(g).
[37]Electoral Act 1992 s.84(1)(a).
[38]Electoral Act 1992 Part 7.
Mr Sharples has never resigned from the party believing that it was unnecessary in view of his belief that he did not become a member in the first place. On 17 February 1999 Mr Sharples received written notice of the forthcoming Annual General Meeting of Pauline Hanson’s One Nation to be held on 28 February 1999 at the Rooty Hill RSL in Sydney. He showed his membership card but Mr Ettridge said words to the effect “that’s just a bit of paper with your name on it” and he was refused entry to the Annual General Meeting. Mr Sharples gave evidence that Mr Ettridge said to him that he had never been “a member of the party Pauline Hanson’s One Nation”. Although Mr Sharples had it put to him in cross-examination that Mr Ettridge had not made these statements to him Mr Sharples was unshaken in his evidence. On the other hand Mr Ettridge failed to give any evidence. In all of the circumstances, I prefer Mr Sharples’ recollection of the conversation. No reason was put forward by the second defendant as to why Mr Sharples’ application for membership might have been dealt with any differently from any other application for membership when he applied to join.
Although Mr Sharples’ credit was undermined by the fact that he gave oral evidence at the hearing about an indemnity from Mr Abbott MHR which apparently contradicted oral evidence given by him before Ambrose J on 21 September 1998 to the effect that he had not had any discussion with Mr Abbott about Mr Abbott’s providing an indemnity for this action or any action he may bring, none of these findings are thrown into doubt by that and I have not been required to make any finding about whether or not there was an indemnity given by Mr Abbott MHR to the plaintiff for his costs in this action.
All of this seems to represent sufficient standing to challenge the registration of a party which was registered only a few months before Mr Sharples was issued with a membership card and became a candidate for Pauline Hanson’s One Nation in the first State election after its registration as a State party. The question is whether he has standing when he commenced the action not whether he had standing at the time registration was effected on 4 December 1997. The matters which give him standing directly relate to the objects of the legislation and the consequences that flow to a political party from registration.[39]
[39]cf Alphapharm Pty Ltd v Smithkline Pty Ltd (supra) at 388.
A decision that the plaintiff has standing is consistent with the view taken of standing by the Administrative Appeals Tribunal, constituted by the President Mathews J and Deputy Presidents Beaumont and Hill JJ in Re Williams and Australian Electoral Commission[40] with regard to the equivalent section[41] of the Commonwealth Electoral Act 1918 that membership of the party or a related party is sufficient to give standing to challenge a decision made under the Commonwealth Electoral Act to change the name of the registered officer of the Greens Party. The plaintiff in that case was a person affected by the decision because, in the event of an election, any member of a political party which was related to the Greens would have had a legitimate interest in ensuring that any nomination of candidates to represent the Greens should be made by a person who was validly appointed to perform the function of registered officer.
[40](1995) 38 ALD 366 at 372.
[41]Section 141.
Extension of time
The time within which an applicant must make an application for review is one month after the decision comes to his or her notice or such further period as the Court allows.[42] This discretion is unfettered but must be exercised judicially according to the circumstances of the case. The onus is on the applicant to show that time should be extended as the presumption is that it should not. As Moynihan J observed in Kuku Djungan Aboriginal Corporation v Christensen:[43]
“It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would be fair and equitable in the circumstances to extend the time. Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and to include a wider public interest. The same may be said of considerations of prejudice to the respondent and others consequent on the delay in bringing the application.”
Although it was immediately before trial that the matter was reconstituted as an application for review, the matter was commenced by writ of summons on 10 July 1998, seeking, inter alia, “a declaration that Pauline Hanson’s One Nation is not a validly registered party pursuant to the Electoral Act 1992 (Qld)”.
[42]Electoral Act 1992 subs.180(2)(c).
[43][1993] 2 Qd R 663 at 665.
From the time of delivery of the original statement of claim on 14 September 1998 it was apparent that the matter was similar to an application to review. Leave was given to so amend the statement of claim without objection on 25 March 1999. On the same date a request for further and better particulars by the first defendant, the particulars given in response by the plaintiff, and by leave amended defences of the first and second defences were tendered.
The time that the decision to register the party was made was 4 December 1997. The applicant must seek an order to review within one month after the decision comes to his or her notice or such further period as the court allows. Mr Sharples’ uncontradicted evidence, which I accept, was that he knew from late April or early May 1998 that Pauline Hanson’s One Nation was fielding candidates in the forthcoming State Election. That election was held on 13 June 1998. He gave evidence that if he had thought about it he would have understood that some registration process had occurred, but he did not think about it. He had not seen the relevant advertisements in the “Courier-Mail” or the “Queensland Government Gazette”. It could be said that he knew of the decision at least constructively to register the party on 20 May 1998 when he met Mr Trewartha.
On 3 July 1998, after he had recovered from the aftermath of the State Election campaign, Mr Sharples contacted the commission to obtain a copy of the constitution that had been submitted by Pauline Hanson’s One Nation. It was only then that the court can be certain that he had actual notice[44] that the party was registered under the Electoral Act 1992. On 7 July 1998, Mr Sharples wrote to Mr O’Shea about the registration of Pauline Hanson’s One Nation. This letter which was drafted by Tom Bradley, a solicitor, advised the commissioner of the following matters which Mr Sharples believed to be true:
[44]Woods v Beattie, ex parte Woods [1995] 1 Qd R 343 at 345.
“·Mr Briggs was involved in preparing the application for registration of Pauline Hanson’s One Nation Party as a political party under the Electoral Act in September 1997.
·The body for which Mr Briggs believed the application was being prepared (and which he believed was seeking registration as a political party) was the Pauline Hanson Support Movement Inc, an association incorporated under the Associations Incorporation Act (Qld) and now known as the Pauline Hanson One Nation Members Inc.
·Mr Briggs supplied a copy of the constitution of the Pauline Hanson Support Movement Inc and the names and addresses of 530 members of that association for inclusion in the application.
·Before the application was submitted to the Commission, the constitution of the organisation known as Pauline Hanson’s One Nation was substituted for the constitution of the Pauline Hanson Support Movement Inc. (I have obtained a copy of the constitution of the Queensland registered party from your office and can confirm that this is not the constitution of the Pauline Hanson Support Movement Inc.)
·The persons whose names and addresses Mr Briggs supplied for inclusion in the application were not members of the organisation known as Pauline Hanson’s One Nation.
·The Pauline Hanson Support Movement Inc is not part of the organisation known as Pauline Hanson’s One Nation.
·The Pauline Hanson Support Movement Inc and the body known as Pauline Hanson’s One Nation are not both parts of the same political party.
·The constitution of the Pauline Hanson Support Movement Inc (a copy of which is enclosed) does not include as an object or activity the promotion of the election to the Legislative Assembly of Queensland of a candidate or candidates endorsed by it (or by a body of which it forms a part).
·According to Mr Briggs, at the time of the application, the only members of the organisation known as Pauline Hanson’s One Nation were Mrs Hanson, Mr David Oldfield and Mr David Ettridge.
·The persons who responded to the Commission’s survey were not supplied with a copy of the constitution lodged as part of the application. They answered the Commission’s question in ignorance of the identity of the entity whose constitution had been lodged. Like Mr Briggs they assumed that the organisation seeking registration was the one they had joined, namely the Pauline Hanson Support Movement Inc.
·The applicant represented to the Commission that the 530 persons whose names and addresses were included in the application were members of the organisation known as Pauline Hanson’s One Nation. In fact, the 530 persons whose names were used in the application, were not members (and are not members) of the entity whose constitution was submitted. They have no rights under that constitution to take any part in the affairs of the body which has become the registered political party under the Electoral Act.
·The person or persons responsible for the substitution of constitutions in the application intentionally deceived the Commission for the purpose of obtaining registration as a political party, contrary to the Act, for an organisation which at the time, according to Mr Briggs, had only three members and no Queensland parliamentary representative.”
In the circumstances, he submitted to the commissioner that there were reasonable grounds for the Commissioner to suspect that the registration of Pauline Hanson’s One Nation had been obtained by misrepresentation or fraud. He sought an investigation by the commissioner and requested the cancellation of the registration of Pauline Hanson’s One Nation under s.75 of the Electoral Act if the commissioner was so satisfied.
The commissioner took the view that the Electoral Act 1992 did not expressly empower him to make such an investigation. However Mr O’Shea sent a copy of Mr Sharples’ letter to Peter James as the Deputy Registered Officer of Pauline Hanson’s One Nation and asked for his response in writing at the earliest opportunity.
On the following day, Mr Sharples wrote to the commissioner saying that he noted from a press report in that morning’s “Courier-Mail” that the commissioner was still of the opinion that:
“ ‘there are no reasonable grounds for consideration of cancelling’ (the current registration of the political party known as Pauline Hanson’s One Nation, ‘One Nation’).”
He asked for a written response to his letter of the previous day and advised that he and other One Nation candidates in the state election would be applying to the Supreme Court as soon as practicable for a Mareva injunction to restrain the commissioner from paying the election funding reimbursement the subject of ss.294 and 294A of the Electoral Act 1992 to the party’s registered agent, Ms Hanson. On 8 July 1998, Mr O’Shea rang Mr James who denied Mr Sharples’ allegations. By letter dated 9 July 1998, Mr O’Shea wrote to Mr Sharples saying that careful consideration had been given to the issues he had raised. However, he was satisfied that the registration was made in accordance with the provisions of the Electoral Act 1992. Furthermore, he was not satisfied on reasonable grounds that the commission should cancel the registration of the party. On 10 July 1998, Mr James said that none of the accusations in Mr Sharples’ letter of 7 July were valid.
On 13 July 1998, Mr Sharples attended the hearing of a chamber application where he was represented by Paul Everingham & Co and AJH Morris QC where an undertaking was given by the first defendant not to make any payment of monies pursuant to Part 7 of the Electoral Act 1992 until the hearing of the application. On 27 July 1998, counsel on behalf of the plaintiff stated to the Court the plaintiff was
“not challenging the decision of the Electoral Commissioner, Mr Desmond O’Shea to register Pauline Hanson’s One Nation as a political party pursuant to the Electoral Act 1992 (Qld) nor the decision of the Electoral Commissioner not to cancel the registration of Pauline Hanson’s One Nation.”
However on a further hearing before Ambrose J on 21 August 1998, the plaintiff stated that the concession was made without his knowledge or authority and that challenging the Electoral Commission was exactly what he was all about.[45] The reasons for judgment of Ambrose J on 31 August 1998 show that the plaintiff’s claim was that the registration of the political party on behalf of the second defendant was obtained by fraud or misrepresentation. On 5 August 1998, he had terminated the services of Paul Everingham & Co and was a litigant in person until represented by Mr English of counsel immediately prior to the commencement of the trial.
[45]Sharples v O’Shea (unreported, Supreme Court of Queensland, CA No. 6318 of 1998, 31 August 1998) at p. 7.
It may be relevant to the notice the second defendants had of the allegations to observe that the defendants to this application were respondents to an application apparently filed on 27 August 1998 by Barbara Hazleton and amended pursuant to an order of this court made on 31 August 1998 to add the original second defendant in this matter as the second respondent in that application. That application sought an order to review the decision made by the commissioner to register Pauline Hanson’s One Nation as a political party on the grounds that the application to register it as a political party did not set out the names and addresses of 500 members of the party who were electors of Queensland but instead set out the names of and addresses of members of another legal entity, Pauline Hanson’s Support Movement Inc; and that the application was not made by the secretary of the political party.
The factors[46] which should be taken into account by the court in determining whether or not to allow a further period in which to commence an order for review are whether there is an adequate or acceptable explanation for any delay in commencing proceedings and any prejudice to the respondents or to third parties or to the public interest by the delay in commencing proceedings. Inevitably the merits of the application will be taken into account. In the end the court must give due weight to these matters and consider whether it is fair and equitable in all of the circumstances to exercise its discretion to extend the time.[47] In this case, Mr Sharples engaged solicitors, Paul Everingham & Co who retained AJH Morris of Queen’s Counsel to advise.[48] It is hardly surprising that he relied upon their advice as to the manner in which the proceedings should be constituted. There can be no real suggestion that the plaintiff slept on his rights. There is an adequate explanation for any delay in commencing proceedings.
[46]See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Chalk v Commissioner for Superannuation (1994) 50 FCR 150.
[47]Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369; Lucic v Nolan (1982) 45 ALR 411; A’Hearn v Comcare (1993) 18 AAR 22 at 24 per Hill J.
[48]Hoffmann v The Queensland Local Government Superannuation Board (supra) at 373.
No real prejudice to either defendant can be attributed to the delay. The writ was commenced before the payment of electoral funding to Pauline Hanson’s One Nation and in any event that payment has been made. There is therefore no financial prejudice alleged. If the payment was induced by fraud or misrepresentation, then its repayment by the second defendant could not amount to relevant prejudice. It should be noted, however, that no such repayment was sought in these proceedings.
It was submitted that the application could have been brought before the State election on 13 June 1998, where eleven candidates nominated by Pauline Hanson’s One Nation were elected to the Legislative Assembly and almost 440,000 voters[49] gave candidates nominated by Pauline Hanson’s One Nation their first preference vote. However as was conceded by all the parties, the decision in this case cannot affect the validity of that election and so there is no relevant prejudice caused by delay to the second defendant. The only way an election may be disputed is by petition to the Court of Disputed Returns in accordance with Part 8 of the Electoral Act 1992 and in no other way. If there was relevant prejudice to others, it was caused by the registration and not by any delay in seeking relief.
[49]See Affidavit of D J O’Shea, paragraph 21.
I am therefore persuaded that I should extend the time to the extent necessary to allow the plaintiff to bring this application.
Objections to evidence
Careful submissions by the defendants were made about the limitations of the pleadings in this case. The plaintiff has struggled to articulate his case clearly. A party is limited by its pleading in the conduct of its case unless the parties have deliberately chosen some other basis for the determination of their respective rights and liabilities.[50] There was no acquiescence in any departure from the plaintiff’s pleaded case by either the first or the second defendant except to any limited extent that can be deduced from their submissions to the Court.
[50]Thorp v Holdsworth (1876) 3 Ch D 637 at 639; Dare v Pulham (1982) 148 CLR 658 at 664; Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287, 288, 302-303; Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 68 ALJR 304 at 310-311.
In the end, in spite of the inadequacy of the pleadings, it would appear that the parties were able to put before the court the relevant issues for determination. It is not necessary to consider the objections to the evidence in great detail. Many objections to the form in which evidence was led by the plaintiff were raised during the course of the trial; the plaintiff almost invariably conceded that the evidence was in inadmissible form and the objections were allowed. As to the objections as to relevance, this judgment deals with the matters which I considered relevant on the pleadings. The statement of claim was amended to plead in accordance with the opening by the plaintiff of his case. It is important that arguments about pleadings should illuminate rather than obfuscate the real issues for determination.
Questions before the court
When the grounds of review, the particulars and the evidence are analysed, the three major questions which initially fall for determination are:
1.Did the written constitution lodged by Pauline Hanson’s One Nation satisfy the requirements of the Electoral Act 1992?
2.Did the secretary of the party sign the application for registration?
3.Did the entity known as “Pauline Hanson’s One Nation” have 500 members eligible to be electors in the State of Queensland when it applied for registration?[51]
Did the written constitution lodged by Pauline Hanson’s One Nation satisfy the requirements of the Electoral Act 1992?
[51]15 October 1997
A subsidiary question to this is did Pauline Hanson’s One Nation have as an object or activity the election of candidates to the Queensland parliament?
A political party is required to include a copy of its constitution with its application for registration.[52] Only a registrable political party is eligible for registration.[53] The definition of “registrable political party”[54] provides that such a party must be an organisation which is established on the basis of a written constitution (however described) that sets out the aims of the party. An object or activity of the political party must be the promotion of the election to the Legislative Assembly of a candidate or candidates endorsed by the organisation or a body or organisation of which it forms a part.
[52]Electoral Act 1992 subs. 70(4)(f).
[53]Electoral Act s.70(2).
[54]Electoral Act 1992 s.3.
This legislation gives effect to a recommendation contained in the EARC Report:
“... Commonwealth legislation (s.126(2) of the CE Act) and most other States require that political parties have a written constitution and a statement of party objectives which is submitted with the application for registration. [EARC] believes that the Queensland system should also seek such documents from applicants for registration. They are a measure of the organisation’s commitment to the task of seeking election.”[55]
EARC noted that all electoral administrations in Australia with registration requirements asked for a copy of the constitution or rules governing the operations of the party.
[55]The EARC Report clause 4.30.
A requirement therefore of an organisation seeking registration as a political party is that:-
(1)The organisation must have a written constitution; and
(2)A copy of the Constitution must be included with the application for registration; and
(3)The Constitution must set out the aims of the party; and
(4)Either (a) an object of the organisation; or
(b) an activity of the organisation
must be the promotion of the election to the Legislative Assembly of a candidate or candidates endorsed by the organisation or a body or organisation of which it forms a part.
The Electoral Act 1992 does not in terms require that the constitution set out as one of the aims of the party that it seeks to have candidates elected to the Legislative Assembly. So long as the organisation has a written constitution which contains whatever aims it has, it is sufficient if the promotion of the election of its candidates to the Legislative Assembly is one of its activities.
The plaintiff alleged that the commissioner allowed the first page of the constitution which was originally lodged to be replaced by a new page. Mr O’Shea gave evidence in this case which I am able to accept in its entirety. He impressed me as a person who has acted throughout this matter in a thoroughly professional, ethical and neutral manner.
It appears that on 13 October 1997, Mr O’Shea, the commissioner, received a phone call from Mr Ettridge who identified himself as an adviser to Ms Hanson and inquired whether an application had been received. Mr O’Shea informed him that an application had been made to register a party called One Nation of Queensland. Mr Ettridge told Mr O’Shea that the application was made without the knowledge or consent of Pauline Hanson or her political organisation. Mr Ettridge said that the Pauline Hanson’s One Nation party was registered under the provisions of the Commonwealth Electoral Act 1918 and that a company was incorporated to operate nationally with the name Pauline Hanson’s One Nation Ltd. Mr Ettridge indicated that he would vigorously defend their interest in the name “One Nation”.
Later on the same day, Ms Hanson called in to the Commission’s office and said that the persons who filed the application did so without her knowledge and consent and she claimed that the list of members was in fact a list of members of her party. The party applying for registration was not her party. She advised Mr O’Shea that she would be seeking to register her party under the provisions of the Electoral Act 1992.
On 15 October 1997 Ms Hanson personally attended the commissioner’s Brisbane office and lodged an application to register a political party called Pauline Hanson’s One Nation. Those documents were personally received by Mr O’Shea. The application was accompanied by what appeared to be a list of members containing more than 1000 names and addresses and other relevant details and a document entitled “Constitution & Model Rules”.
On 16 October 1997 Mr O’Shea wrote to Ms Hanson acknowledging receipt of her application and apologising for not noticing that she had not signed the relevant forms. It was also noted that the constitution submitted provided for the party to endorse candidates for the Senate and House of Representatives. His letter informed Ms Hanson that it would be necessary to amend the constitution to also provide for endorsement of candidates for the Legislative Assembly of Queensland. It appears that at the time the application was first made to register the political party in Queensland, there was no organisation then able to be registered as a political party in Queensland as there was no organisation whose object or activity, or one of whose objects or activities was the promotion of the election of candidates endorsed by it to the Legislative Assembly.
Mr O’Shea telephoned Ms Hanson during the afternoon of 15 October 1997 and informed her of those matters. These matters had been brought to his attention by Donald Schultz, a senior elections officer and a member of his staff whom he had requested to consult with Ms Libby Gladwin, principal projects officer, for the purpose of determining whether the provisions of the Electoral Act 1992 had been complied with.
On or about 20 October 1997 Mr O’Shea received an amended application for registration signed by the proposed registered officer, Ms Hanson, and on the same date he received under cover of a letter dated 15 October 1997 an amended front sheet of the constitution which was attached to the application for registration. The new front page set out the objects as follows:
“The objects for which the association is established are:
To support Pauline Hanson’s efforts to bring about the necessary changes for fair and equal treatment of all Australians, within a system of government which recognises and acts upon a need for all Australia to be truly One Nation.”
The aims were said to be:
“To endorse persons for election as candidates to the Legislative Assembly of Queensland.”
The front page of the constitution previously submitted contained the same objects but the aims were said to be:
“To endorse candidates for the Senate and House of Representatives to support Pauline Hanson in accordance with the previously stated objects.”
Mr O’Shea gave evidence that he was surprised by the short amount of time within which the constitution had been amended as he was under the impression that ordinarily constitutions provide that a constitution may only be amended at a general meeting. Accordingly he looked into the terms of the constitution and noted that cl.33 of the constitution provided that subject to the provisions of the Associations Incorporation Act 1981, the rules may be amended by a special resolution carried at any management committee meeting. Clause 5 provides that initially the management committee should consist of only three members, the President, Vice President and Treasurer. Mr O’Shea was aware that he was dealing with an unincorporated association which appeared to have made use of the model rules prescribed under the Associations Incorporation Act. He correctly took the phrase “subject to provisions of the Associations Incorporations Act” to be meaningless because the Associations Incorporations Act provision[56] dealing with amendment to the constitution applies only to incorporated associations. The constitution makes other meaningless references to the body being incorporated but such references cannot make an unincorporated body incorporated. It was not an incorporated body. Mr O’Shea was therefore satisfied that the constitution could be amended within the time frame.[57]
[56]Section 48.
[57]The incorporated body was Pauline Hanson’s Support Movement Inc which had a different constitution from Pauline Hanson’s One Nation and which did not apply for registration as a political party.
In 1995, Mr O’Shea had sought advice from the Crown Solicitor as to how he should apply the provisions of the Electoral Act in relation to the constitutions of political parties. The advice he had received was that political parties are largely private unincorporated organisations and therefore the commission should not be delving into their internal affairs. He was merely required to satisfy himself that the constitution was adequate for the purpose of registration under the Electoral Act 1992. He had in his mind that EARC had recognised that the requirement for the constitution of the political party to accompany the application was to ensure a measure of the organisation’s commitment to the task of seeking election. At the time of registration of Pauline Hanson’s One Nation pursuant to the Electoral Act 1992, he knew that Pauline Hanson’s One Nation was registered federally with the Australian Electoral Commission. Mr O’Shea also says that he knew that it was intended that candidates for Pauline Hanson’s One Nation would contest the next Queensland election.
Being conscious of the fact that any member of the party or of the public could make a submission to the commission on any matter of concern when the public notice was published in accordance with s.71 of the Electoral Act 1992, he substituted the new front page that he had received for the front page of the constitution which was attached to the application for registration. Mr O’Shea said he thought it would be excessively bureaucratic to require the rest of the pages to be produced a second time since the only change was to the front page.
There was no reason for Mr O’Shea to think that the aims and objectives in the constitution had not been amended by the management committee in accordance with the constitution. However the situation was different before the court. The court has the advantage, that the commissioner did not have, of sworn evidence on which witnesses were fully cross-examined and of further documentation.
The second defendant could have given evidence to the court of a constitutional change or of the election of people to the Legislative Assembly being one of the party’s objectives or activities when it applied for registration but chose not to do so. I would therefore be inclined to draw the inference that the second defendant was not able to do so. This was entirely a matter within the second defendant’s knowledge. However, in the end, I do not regard this as a matter of great moment as clearly, shortly after the application and before registration, the second defendant had as one of its activities the promotion of the election of its candidates to the Legislative Assembly. For example, on 24 October 1997, Ms Hanson issued a news release saying that Pauline Hanson’s One Nation would contest the next Queensland state election and was calling for candidate nominations. Mr Trewartha gave evidence that on about 22 October 1997, he had a conversation with Ms Hanson where “she confirmed that we were not going to the State election”. Mr Lyons QC put it to Mr Trewartha that Ms Hanson was opposed to running candidates in the state election until early September but Mr Trewartha maintained that the first he knew of her change of mind was after the news release was issued. There was no evidence of any earlier time when this was an objective or activity of the party.
There is nothing to suggest that the commissioner on the evidence before him was or should have been alert to such fraud or misrepresentation in this case.
On 4 December 1997 the commission registered Pauline Hanson’s One Nation as a political party under the Electoral Act 1992. In doing so, he did not act arbitrarily or capriciously[100] or so unreasonably that no reasonable person in the position of the commissioner could have so exercised the power;[101] nor did he fail to take into account relevant considerations or take into account irrelevant considerations;[102] nor did he act at any person’s direction.
[100]cf Federal Commissioner of Taxation v Bayly (1952) 86 CLR 506 per Williams J.
[101]Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; Chapman v Tickner (1995) 55 FCR 316 at 368; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36, 37 per Brennan J.
[102]Except the considerations he took into account which were infected by fraud or misrepresentation.
However the registration of the party was induced by fraud or misrepresentation in that Ms Hanson and Mr Ettridge as the management committee members of Pauline Hanson’s One Nation who were responsible for the registration application well knew that it did not have 500 members. This is not an insignificant matter as it is the basis for the registration of a non- parliamentary party as Pauline Hanson’s One Nation was at that time.
An administrative decision can be set aside on the basis that it was induced by fraud or misrepresentation and had the true facts been known it would not have been made. As Finklestein J said in the leading judgment in Leung v Minister for Immigration and Multicultural Affairs:[103]
“There is a good deal to be said for the view that an administrative decision which is plainly erroneous should not stand.”
His Honour considered that an “invalid decision” i.e. an administrative decision which could “be impugned for jurisdictional error or for a failure to observe procedural fairness or one that is brought about by fraud or misrepresentation”, could be ignored or revoked. The original decision, having been obtained by a misrepresentation, is not a decision made in the true exercise of the power conferred by the statute and can be treated as having no effect.[104]
[103](1997) 150 ALR 76 at 85.
[104]Leung v Minister for Immigration and Multicultural Affairs (supra) at 76, 90.
Whether or not an invalid decision can be ignored or must formally be revoked[105] as held by Heerey J in Leung,[106] that a decision is invalid because induced by fraud or misrepresentation is a proper ground of judicial review.[107]
[105]The power of revocation is given by Acts Interpretation Act 1954, s.24AA.
[106]See discussion in Campbell E, “Effect of Administrative Decisions Procured by Fraud or Misrepresentation” (1998) 5 AJ Admin L 240.
[107]Lazurus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713, 722; R v Ashford, Kent, Justices; Ex parte Richley (No 2) [1956] 1 QB 167; cf Judicial Review Act 1991 s.20(2)(g).
There may in certain cases be factors applicable[108] to any discretion the Court might have to refuse to grant relief in an application of this type even where the conditions precedent to the exercise of the court’s power to grant relief are fulfilled.[109] Any discretion to refuse relief is not found in the statute under consideration and so could only be found in the exercise of the inherent jurisdiction of the court. This is not such an unusual or exceptional[110] case as to warrant the exercise of a discretionary power.
[108]Bollag v Attorney-General (Cth) (1997) 149 ALR 355 at 373.
[109]Lamb v Moss (1983) 49 ALR 533 at 546.
[110]Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 137 ALR 47 at 67.
There is a public interest that the registration of political parties should not be obtained on the basis of such crucial information known by those providing it to be incorrect. The integrity of the electoral process would otherwise be undermined and any inconvenience of the result is not a reason in this case for withholding relief. The delay itself in seeking relief is not this case a sufficient reason to withhold relief.
The second defendant has not satisfied the Court that there are circumstances which make it just that a remedy should be withheld.[111] Importantly, as I have said earlier, and as accepted by the parties, the decision cannot affect the result of the election held in June 1998. This is because the only method of disputing an election is by petition to the Court of Disputed Returns and in no other way.[112] I am not satisfied that the plaintiff had as the predominant object of the proceedings some ulterior or collateral motive or purpose other than to show that the political party for which he stood as a candidate was registered by fraud or misrepresentation.[113] This he has succeeded in doing.
[111]R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400.
[112]Electoral Act 1992 Part 8.
[113]cf Packer v Meagher (1984) 3 NSWLR 486 at 492-493; Rajski v Bainton (1990) 22 NSWLR 125 at 131.
In particular, it is not a ground to refuse relief that, from the return of the election writ after the election in 1998, the requirement for 500 members no longer exists as the party had parliamentary members. There was no evidence put forward by the second defendant that they were in fact members of Pauline Hanson’s One Nation, again a matter peculiarly within the knowledge of the second defendant. The matter is different from registration under the Commonwealth Electoral Act as there is no doubt that when it was registered, it did have a parliamentary member, i.e. Ms Hanson. I would not therefore exercise any such discretion to refuse relief.
Conclusion
After reviewing the decision of the commission, I am satisfied that the decision to register Pauline Hanson’s One Nation under the Electoral Act 1992 was induced by fraud or misrepresentation.
The order sought by the plaintiff is the setting aside of the decision of the commissioner and making a decision in substitution thereof. I set aside the decision of the commissioner made on 4 December 1997 and decide that Pauline Hanson’s One Nation was not entitled to registration as a political party in Queensland as it did not satisfy the requirement of s.70 of the Electoral Act 1992.
I will hear argument as to costs.
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