Smith v Australian Electoral Commission - [2008] FCA 953

FEDERAL COURT OF AUSTRALIA
Smith v Australian Electoral Commission [2008] FCA 953
PARLIAMENTARY ELECTIONS – Senate election – petition filed under s 355 of Commonwealth Electoral Act 1918 (Cth) claiming political party obtained registration from respondent by fraud or misrepresentation – whether petition complies with requirements of the Act – section 358 provides that no proceedings shall be had on the petition unless requirements of s 355 are complied with – petition does not contain necessary facts as required under s 355(a) – facts must raise matters by which the election is likely to be affected – section 355(e) requires petition to be filed within forty days – amendment to petition not available as forty day period has expired
Commonwealth Electoral Act 1918 (Cth) ss 352, 355, 358, 360(1), 362
McClure v Australian Electoral Commission (1999) 163 ALR 734 cited
Nile v Wood (1987-1988) 167 CLR 133 followed
Robertson v Australian Electoral Commission (1993) 116 ALR 407 cited
Rudolphy v Lightfoot (1999) 197 CLR 500 followed
Sykes v Australian Electoral Commission (1993) 115 ALR 645 followed
Webster v Deahm (1993) 116 ALR 223 followed
Wheeley v Australian Electoral Commission [2005] FCA 473 applied
ROBERT ARTHUR SMITH v AUSTRALIAN ELECTORAL COMMISSION
NSD 616 OF 2008
BENNETT J
27 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 616 OF 2008

BETWEEN:

ROBERT ARTHUR SMITH
Petitioner

AND:

AUSTRALIAN ELECTORAL COMMISSION
Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

27 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The petition is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 616 OF 2008

BETWEEN:

ROBERT ARTHUR SMITH
Petitioner

AND:

AUSTRALIAN ELECTORAL COMMISSION
Respondent

JUDGE:

BENNETT J

DATE:

27 JUNE 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION

Mr Smith has filed a petition under s 355 of the Commonwealth Electoral Act 1918 (Cth) (‘the Act’) in respect of the half Senate election held on 24 November 2007 (‘the election’). The petition was filed in the High Court on 25 January 2008 as the Court of Disputed Returns (s 354 of the Act). On 8 April 2008 Gummow J referred the matter to this Court on the application of the respondent (‘the Commission’). The Commission also sought an order that the petition be dismissed, on the grounds that:
1.First, as a matter of form, the petition fails to comply with s 358 of the Act.
2.Secondly, as a matter of substance, the petition is doomed to failure.
As the first of those grounds may be determinative of the petition, I proceeded to consider it separately.
Mr Smith was the No 1 Senate candidate for The Fishing Party, contesting the election in Queensland in the above the line group ticket G. He alleges in the petition that the Commission registered a political party that contested the election for Queensland, New South Wales and South Australia, named the Australian Fishing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 953
Decision Date: 27 June 2008

CaseChat Overview and Summary

In the matter of Smith v Australian Electoral Commission, the petitioner, Mr Smith, sought to have the Senate elections declared void due to the wrongful registration of the Fishing and Lifestyle Party under Part XI of the Act. The Australian Electoral Commission defended the validity of the elections and argued that the petition did not sufficiently allege facts capable of showing that the wrongful registration likely affected the outcome of the elections.

The legal issues before the court were whether the petition complied with section 355(a) of the Act, which requires the petition to set out the facts relied on that arguably lead to the invalidation of the election. The court also needed to determine if the petition established that the result of the election was likely to be affected by the alleged illegal practice, as required by section 362(3) of the Act.

The court found that the petition did not include necessary facts to demonstrate that the wrongful registration was likely to affect the outcome of the elections. The alleged facts, while suggesting that the existence of a party as a group could affect the distribution of preferences, did not address the specific matters necessary to show a likely impact on the election result. Additionally, the court noted that any amendment to the petition was not possible due to the expiration of the 40-day period stipulated in section 355(e) of the Act.

Therefore, the petition was dismissed for failing to comply with section 355(a) of the Act. The court will hear from the parties regarding the costs of the proceedings.

Orders

Orders of the court

1. The petition is dismissed.

Background

Background to the litigation

It is also necessary to record s 362 of the Act which relevantly provides in subs (3):The Court of Disputed Returns shall not declare…any election void…unless the Court is satisfied that the result of the election was likely to be affected, and that it is just…that the election should be declared void.Does the petition set out the facts relied on? The Commission contends that:·s 355(a) requires that the petition contain a set of facts that will arguably lead to invalidation of the election and that it does not do so;·where the basis for declaring the election void under s 362 is illegal practice, the petition must establish, to the satisfaction of the Court, that the result of the election was likely to be affected (s 362(3));·no facts alleged in the petition give any indication of the actual or potential outcome of the illegal practice;·there are no facts or assertions that the result of the election was likely to be affected; and·therefore the petition fails to comply with s 355(a) of the Act and must be dismissed. Examples of facts said by Mr Kennett, counsel for the Commission, to be necessary, that are not alleged in the petition included:·the need to state the number of votes received by the Fishing and Lifestyle Party;·the proportion of the overall vote and how those votes were distributed; and·whether the share of the vote by the Fishing and Lifestyle Party was sufficiently large to affect the outcome, if those votes had been given either directly or by the distribution of preferences to another person or persons. The Commission submits that, as pointed out by Gaudron J in Webster v Deahm (1993) 116 ALR 223 at 225, the very minimum assertion necessary to constitute a fact which will invalidate an election or return for the purposes of s 355(a) of the Act is one that raises a matter or matters by which the election was likely to be affected, such as an assertion ‘that goes to or bears upon the casting or counting of votes’. The petition does include some alleged facts under the heading “The Senate Election Facts”. Apart from setting out some general matters about “above and below the line” voting, the following facts are alleged, described as “particulars”:(xxxi)The above the line groups especially like minded ones are known for doing preference swaps or deals which create preference flows that either enhance or restrict a group vote tally to reach the required Quota to become elected or excluded, so the preference flow is most important to parties who fail to gain the quota at first preference.(xxxii)The inclusion or exclusion of above the line groups with their preference “deals” is crucial in the Senate preference system for any group to achieve quota or deciding last Senate spots. Is there a remedy for unscrambling election Senate results if a group is removed from the election after the votes have been cast and counted? (original emphasis) These alleged facts do not address the matters raised in Webster. Read beneficially to Mr Smith, they do suggest that the existence of a party as a group affects the actual votes recorded and also the directed distribution of preferences. That distribution may be influenced and affected as alleged by ‘deals done prior to the election for the distribution of preferences’.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BENNETT J

In Rudolphy, the High Court confirmed that ‘once the forty day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of section 355’ (at [12]). Amendment to the petition is not available. CONCLUSION Mr Smith seeks by the petition an order that the Senate elections be declared void on the ground that the registration of the Fishing and Lifestyle Party contravened Part XI of the Act. However, his petition does not allege sufficient facts that would be capable of showing that any such wrongful registration is likely to have had any effect on the outcome of the elections in question. Any amendment to the petition is not available as the 40 day period referred to in s 355(e) has now expired. The petition fails to comply with s 355(a) of the Act and must therefore be dismissed. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 616 OF 2008

BETWEEN:	ROBERT ARTHUR SMITH Petitioner
AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	27 JUNE 2008
WHERE MADE:	SYDNEY

JUDGE:	BENNETT J
DATE:	27 JUNE 2008
PLACE:	SYDNEY