Sykes v Australian Electoral Commission

[1993] HCA 36

HIGH COURT OF AUSTRALIA

Dawson J

IAN SYKES v. AUSTRALIAN ELECTORAL COMMISSION

(1993) 115 ALR 645

17 August 1993

Orders

No proceedings be had on the petition.

Petition dismissed.

Decision

DAWSON J This summons is taken out by the Australian Electoral Commission ("the Commission") as respondent to a petition under Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). The petitioner, Ian Sykes, disputes the validity of the election held on 13 March 1993 of senators for the States and Territories, the election held on 13 March 1993 of members of the House of Representatives for all Divisions except Dickson, and the election held on 17 April 1993 of the member of the House of Representatives for the Division of Dickson. The petitioner was at the time of the elections enrolled in the Division of Wills and qualified to vote. He was also nominated as a candidate for election in that Division to the House of Representatives but his nomination was rejected. However, his qualification to vote satisfies, so far as the election of a member for the Division of Wills and of senators for Victoria is concerned, the requirement of s.355(c) of the Act that a petition "be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat". Under s.354 of the Act the High Court is the Court of Disputed Returns and has jurisdiction to try the petition.

2. The orders sought in the summons are that no proceedings be had on the petition on the ground that it does not comply with the requirements of s.355(a) and (aa) of the Act and that the petition be dismissed in so far as it challenges the election of members of the House of Representatives for any Division other than the Division of Wills and the election of senators for States and Territories other than for the State of Victoria. The Commission was content to put aside, without abandoning, any questions concerning the service of the petition and to proceed to the petition itself.

3. In the first instance the petition "disputes each seat in both the Senate and House of Representatives polls of 13 March and 17 April 1993 for the Commonwealth Parliament". The reference to 17 April 1993 is a reference to a supplementary election held in the Division of Dickson because of the death of a candidate. The grounds relied upon by the petitioner in this part of the petition are that the respondent:

"A. used a double negative on the question of eligibility making each candidate's declaration on s.44 of the Constitution uncertain and causing the rejection of a valid nomination; and B. failed to ask if candidates had renounced rights and privileges of a foreign power to that power making it uncertain if any candidate was capable of sitting under s.44(i) of the Constitution".

4. Strictly speaking, it is unnecessary to go to these grounds because of the nature of the relief claimed in reliance upon them. That relief is a declaration that the election of all members of the House of Representatives and of all senators is void. Thus, the relief claimed extends beyond the election of the member for the Division of Wills and beyond the election of senators for Victoria. That is, in my view, sufficient to deny the petitioner the relief claimed in this aspect of the petition. I need do no more, I think, than indicate my agreement with the conclusion reached by Brennan J in Muldowney v. Australian Electoral Commission ((1) (1993) 114 ALR 513, at p 519.) which was as follows:
"The framework of the Act as well as the language of
s.355(c) indicates that the jurisdiction of the Court of Disputed Returns does not extend to the making of a declaration that the entirety of a general election is void. The jurisdiction to declare an election void on the petition of a person 'who was qualified to vote thereat' is limited to those elections in which the petitioner was an elector entitled to vote. If a challenge on justiciable grounds can be mounted to the validity of a general election - a question that I need not consider - such a challenge cannot be entertained by the Court of Disputed Returns ((2) Re Surfers Paradise Election Petition (1975) Qd R 114, at p 117, suggests that a similar conclusion was reached under the Elections Act 1915 (Q) by Dunn J sitting as an Election Tribunal.). It may be that the High Court has such a jurisdiction but that has not been decided: see the dicta of Gibbs CJ in McKenzie v. The Commonwealth of Australia ((3) (1984) 59 ALJR 190, at p 191; 57 ALR 747, at pp 749-750.)."

In advancing a contrary proposition the petitioner submitted that, on Brennan J's view, unless a person was also enrolled in the Division for which he or she submitted a nomination, then that person would not be able to contest a rejection of that nomination in a Court of Disputed Returns. That would appear to be so, but it is, I think, a circumstance which is insufficient to overcome the clear inference which arises from s.355(c) ((4) See also ss.154, 180(1) and (2), 221, 277-279.). In any event, it would not prevent the election from being disputed by some person who was enrolled in the Division; it would merely prevent it from being disputed by the candidate whose nomination was rejected.

5. Although it is not necessary to do so, I think I should add that the grounds relied upon would not, in my view, justify the relief claimed even if it were restricted to the election of the member of the House of Representatives for the Division of Wills or of senators for Victoria.

6. What is referred to in ground "A" is the nomination form provided by the Commission which asks a candidate to tick a box indicating "yes" or "no" next to a statement that "I am not, by virtue of section 44 of the Constitution, incapable of being chosen or of sitting as a Member of the House of Representatives" ((5) A nomination is not required to be in this form: cf. ss.166(1) and 170(1).). Even if, as the petitioner alleges, the statement does contain a double negative, it is not, in my view, unclear or uncertain and the requirement that the candidate tick the relevant box is plainly a requirement to indicate whether the statement is correct in relation to the candidate. In any event, the statement is contained in the relevant nomination forms set out in Sched.1 to the Act. Section 166 of the Act provides that a nomination may be in one of those forms, and compliance with s.166 could hardly be a ground for the invalidation of an election.

7. So far as ground "B" is concerned, there is no requirement in the Constitution, the Act or in Sched.1 that the Commission ask whether a candidate has renounced the rights and privileges of a foreign power. Section 170(1)(b)(i) requires a candidate to declare that he or she is "qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator or a member of the House of Representatives". No more specific statement is required and it follows that the petitioner could not succeed upon ground "B".

8. The petition also contests the validity of the election of the member for the Division of Wills and of senators for Victoria. The Wills election is alleged to be void because the respondent accepted the invalid nominations of:

"1. Cecil Murgatroyd who residing in and a citizen of New Zealand breached s.34 and 44(i) of the Constitution and 2. Vasilios Kardamitsis and Jack Minas without their attestations they had irrevocably renounced to the Greek Minister concerned their rights and privileges in Greece and 3. Katheryne Savage who breached s.44(iv) of the Constitution by being a paid councillor of the City of Coburg which is an office of profit under the Crown and 4. Philip Cleary who being insolvent breached s.44(iii) of the Constitution and 5. Ken Mantell who failed to give an address";

and rejected the valid nomination of:

"6. Ian Sykes who complied with the Commonwealth Electoral Act 1918 and was a citizen entitled to restand for Wills".

(numbering added)

9. In relation to these grounds the respondent submits that the petition does not comply with the requirements of s.355(a) and (aa) of the Act. Section 355 provides that a petition shall:

"(a) set out the facts relied on to invalidate the election or return; (aa) subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief".

Section 358 provides:

"(1) Subject to subsection (2), no proceedings shall be had on the petition unless the requirements of sections 355, 356 and 357 are complied with. (2) The Court may, at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with paragraph 355(aa). (3) The Court shall not grant relief under subsection (2) unless it is satisfied that: (a) in spite of the failure of the petition to comply with paragraph 355(aa), the petition sufficiently identifies the specific matters on which the petitioner relies; and

(b) the grant of relief would not unreasonably prejudice the interests of another party to the petition."

10. The statement of the facts relied on to invalidate the election which par.(a) of s.355 requires cannot be amended if, as is the case here, more than forty days have elapsed since the return of the writ for the election. Otherwise the amendment would in effect evade s.355(e) which requires the petition to be filed within that time ((6) Cameron v. Fysh (1904) 1 CLR 314, at p 316; In the Matter of a Petition by Helen Therese Berrill (1978) 52 ALJR 359, at p 360.). It would seem that the facts which par.(a) requires to be set out are the essential facts from which, if proved, it might be concluded that the election or return was invalid. Although the precise distinction between par.(a) and par.(aa) of s.355 is a matter of some obscurity ((7) Par.(aa) was apparently intended to require petitions to be "more specific": Commonwealth, Senate, Parliamentary Debates (Hansard), 29 April 1988, at p 2139; Electoral and Referendum Amendment Bill 1988 (Cth), Explanatory Memorandum, cl.111; Joint Select Committee on Electoral Reform, Commonwealth, The operation during the 1984 general election of the 1983/84 amendments to Commonwealth electoral legislation, Report No.2, (1986), pp 203-205.), it appears that under par.(a) the essential facts may be stated with a degree of generality and it is par.(aa) which requires sufficient particularity to identify the specific matter or matters relied on. The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which par.(a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity ((8) Cole v. Lacey (1965) 112 CLR 45, at p 51; Nile v. Wood (1988) 167 CLR 133, at p 138.). That must be so for otherwise s.355(a) in conjunction with s.358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of par.(a) were satisfied. The Court would then be required to try the petition even though on its face it could not succeed.

11. The successful candidate for the seat of Wills was Philip Cleary, referred to in ground 4, who was returned as duly elected. The persons mentioned in grounds 1, 2, 3 and 5 were unsuccessful candidates. In each case it is alleged that the relevant nomination was wrongly accepted.

12. Under s.172 of the Act:

"(1) Subject to subsection (2), a nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of section 166, 167, 170 or 171 have not been complied with in relation to the nomination. (2) No nomination shall be rejected by reason of any formal defect or error in the nomination if the officer to whom the nomination is made is satisfied that the provisions of sections 166, 167, 170 and 171 have been substantially complied with. (3) A request under this Part is not ineffective because of any formal defect or error in the request if the requirements of this Act have been substantially complied with."

Having regard to that section, no facts are alleged in grounds 1, 2, 3, 4 and 5 which would justify the conclusion that the relevant nominations ought to have been rejected.

13. In the case of Kardamitsis and Minas there was no requirement that they attest that they had irrevocably renounced to the Greek Minister concerned their rights and privileges in Greece. In the case of all the candidates there was a requirement under s.170(1)(b)(i) that the person nominated declare that he or she was qualified under the Constitution and the laws of the Commonwealth to be elected as a member of the House of Representatives. But there was no requirement in that section (or in any other section prescribing the mode of nomination, in particular, ss.166, 167 or 171) that the person nominated actually be qualified under the Constitution or the laws of the Commonwealth. That was a question which the officer to whom the nomination was made was not required to determine. Provided the required declaration was made, the lack of qualification was no ground for the rejection of a nomination. The petitioner does not allege that any of the persons mentioned in grounds 1, 2, 3 and 4 failed to make the required declaration and he does not, therefore, set out any facts which would indicate that any of the nominations ought to have been rejected. He does not, therefore, in relation to grounds 1, 2, 3 and 4 set out the material facts to justify the grant of relief.

14. Ground 5 alleges that a person nominated failed to give an address. Even if this were true, the officer to whom the nomination was made might have been compelled to accept the nomination because he or she was satisfied that the provisions of ss.166, 167, 170 and 171 had been substantially complied with ((9) s.172.). The facts set out therefore would not establish that the acceptance of the nomination contravened the Act and so justifies the grant of relief.

15. In grounds 1, 2, 3, 4 and 5 the petitioner relies upon the Commission's wrongful acceptance of the candidates' nominations rather than their lack of entitlement to be nominated. But the petition would fail even if it could be read as setting out facts alleging that the candidates were in breach of the Act by reason of their nominations ((10) ss.163(2), 339(3).) : the facts alleged in ground 4 do not amount to a breach of the Constitution; and, as will appear, s.362 precludes an invalidation of the election without more facts than those alleged in grounds 1, 2, 3 and 5.

16. Ground 4 alleges that the nomination of Philip Cleary, the elected candidate, was invalid because he was insolvent and therefore in breach of s.44(iii) of the Constitution. Section 44(iii) renders a person incapable of being chosen as a member of the House of Representatives if that person "is an undischarged bankrupt or insolvent". But the phrase "undischarged bankrupt or insolvent" is a composite one. As was explained in Nile v. Wood ((11) (1988) 167 CLR, at p 140.), against the background of bankruptcy or insolvency laws in the various colonies, the term insolvent must be read as meaning adjudicated insolvent, and the failure to allege that a candidate is an undischarged bankrupt or an undischarged insolvent is a failure to allege facts bringing that candidate within s.44(iii) of the Constitution. Apart from the circumstance that ground 4 does not allege facts which would have required the rejection of Cleary's nomination, ground 4 also fails to set out any facts which could be relied upon to invalidate Cleary's election.

17. Even if grounds 1, 2, 3 and 5 could be read as alleging breaches of the Act or of the Constitution by the candidates, they could not establish the petitioner's entitlement to relief for the same reason that ground 6, to which I now turn, would not do so.

18. Section 362(3) of the Act provides:

"The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void: (a) on the ground of any illegal practice committed by any person other than the candidate and without the knowledge or authority of the candidate; or

(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

"Illegal practice" is defined in s.352(1) as "a contravention of this Act or the regulations".

19. The petitioner alleges in ground 6 that his nomination was valid and was wrongfully rejected. If that was so, then there was a contravention of the Act and, for that reason, an illegal practice on the part of the officer to whom the nomination was made. But that would not be a sufficient basis under s.362(3) to declare the relevant election void. Before that can be done the Court must be satisfied that the result of the election was likely to be affected ((12) Crouch v. Ozanne (1910) 12 CLR 539, at p 542.), and ground 6 sets out no facts which would justify the Court in being so satisfied. And grounds 1, 2, 3 and 5 similarly set out no such facts. It follows, I think, that on the facts relied on by the petitioner in relation to these five grounds no relief could be granted ((13) But cf. In re Baker's election (1965) Tas SR 152, at p 167.).

20. I should not, however, leave the matter without referring to s.365 which, so far as is relevant, provides:

"No election shall be avoided... on account of the absence or error of or omission by any officer which did not affect the result of the election".

I mention this section because it has been held that the words "which did not affect the result of the election" do not require a petitioner who relies upon an absence, error or omission on the part of an officer to allege or prove that the result of the election was affected. This was the view expressed by Taylor J in Cole v. Lacey ((14) (1965) 112 CLR, at pp 48-49.) and his reason was as follows:

"I base this view upon s.194 of the Act which provides that: 'No election shall be avoided... on account of the absence or error of or omission by any officer which did not affect the result of the election'. The section in its original form and as re-enacted by the Commonwealth Electoral Act 1918 was the subject of consideration by Isaacs J in Kean v. Kerby ((15) (1920) 27 CLR 449.). At this time the section read: 'No election shall be avoided... on account of the absence or error of any officer which shall not be proved to have affected the result of the election'. Isaacs J pointed out that in England the relevant law provided 'that no election shall be declared invalid by reason of non-compliance with the election rules... if it appears to the tribunal (a) that the election was conducted in accordance with the principles laid down in the body of the Act, and (b) that such non-compliance... did not affect the result of the election' ((16) ibid, at p 458.). Thereafter he proceeded: 'In other words, if the matter is left so that the mistake may have affected the result, the election may be declared invalid. Under our Act it is different. By s.194 it is provided that "No election shall be avoided... on account of the... error of any officer which shall not be proved to have affected the result of the election". The "result" means the return of the particular candidate, and not the number of his majority' ((17) ibid.). These observations were made in 1920 but by the Commonwealth Electoral Act 1922 s.194 was amended by omitting the words 'shall not be proved to have affected' and inserting in their stead the words 'did not affect'. The present form of the section, having regard to its history, leaves no room for the suggestion that in a case such as the present it is incumbent upon the petitioner to allege, or, at a later stage, to prove that the alleged irregularities affected the result of the election."

Taylor J's analysis is supported by the second reading speech for the Electoral Bill 1922 (Cth) ((18) Commonwealth, Senate, Parliamentary Debates (Hansard), 26 July 1922, at p 752.). In construing a similarly worded provision in Varty v. Ives, Starke J came to the same conclusion ((19) (1986) VR 1, at pp 10-16.).

21. Section 194 has, of course, become s.365, and s.362 was formerly s.191. Originally there was no definition of "illegal practice" and, in the absence of a definition, I should have thought that the matter of which the petitioner complains in ground 6 falls within what is now s.365 rather than what is now s.362. That is to say, the wrongful rejection of a nomination would constitute an "error or omission" rather than an "illegal practice". But in 1983, the definition of "illegal practice" was added by amendment ((20) Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s.128.). There can, I think, be no doubt that the wrongful rejection of a nomination is a "contravention of the Act" and it must follow, in accordance with the definition, that it is an illegal practice. That means that s.362 is the more specific section and is the section which operates where applicable in preference to s.365. Under s.362 the Court, before granting relief, must be satisfied that the result of the election was likely to be affected by the illegal practice. Under s.355(a) the petitioner must set out the material facts upon which he relies to establish that likelihood. The petitioner has not done that in relation to ground 6 or, for that matter, grounds 1, 2, 3 or 5.

22. Finally, the petitioner contests the validity of the election of senators for Victoria on the ground that the valid nomination of Daniel Hogarty as a Senate candidate was rejected "for answering no to the question in 'A' above". The question referred to is apparently the statement, appearing in the relevant forms in Sched.1, that "I am not, by virtue of s.44 of the Constitution, incapable of being chosen or of sitting as a Senator" beside which the candidate is required to tick a box indicating "yes" or "no". For the reasons given in relation to the corresponding nomination form for the House of Representatives, I do not consider that the statement in question or the method of making it gives rise to any uncertainty. In any event, as I have pointed out, both the statement and the method of making it are prescribed by the Act. Under s.170(1)(b)(i) a nomination is not valid unless, in the nomination paper, the person nominated declares that he or she is qualified under the Constitution and the laws of the Commonwealth to be elected as a senator. "Answering no to the question" was in effect a denial by Hogarty that he was qualified under s.44 of the Constitution, and there are no facts set out which would indicate that Hogarty otherwise made the declaration required by s.170(1)(b)(i). Nor does the petition set out any facts which would indicate that the officer to whom the nomination was made was satisfied that Hogarty had substantially complied with that provision. As I have said, under s.172 a nomination must be rejected if, inter alia, s.170 is not complied with. Upon this ground, therefore, no sufficient facts appear to establish any contravention of the Act or otherwise to justify relief being granted.

23. For these reasons, the respondent is entitled to the orders which it seeks. The appropriate order is that no proceedings be had on the petition and that the petition be dismissed.